Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - x 3 UNITED STATES, ET AL., 4 5 6 Petitioners : v. No. 15-674 : TEXAS, ET AL., 7 8 : : Respondents. : - - - - - - - - - - - - - - - - - x 9 Washington, D.C. 10 Monday, April 18, 2016 11 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United States 14 at 10:04 a.m. 15 APPEARANCES: 16 GEN. DONALD B. VERRILLI, JR., ESQ., Solicitor General, 17 Department of Justice, Washington, D.C.; on behalf of 18 Petitioners. 19 20 21 22 23 THOMAS A. SAENZ, ESQ., Los Angeles, Cal.; on behalf of Intervenor-Respondents in support of Petitioners. SCOTT A. KELLER, ESQ., Solicitor General of Texas, Austin, Tex.; on behalf of Respondents. ERIN E. MURPHY, ESQ., Washington, D.C.; for United 24 States House of Representatives, as amicus curiae, 25 supporting Respondents. Alderson Reporting Company Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 GEN. DONALD B. VERRILLI, JR., ESQ. 4 On behalf of the Petitioners PAGE 5 ORAL ARGUMENT OF 6 THOMAS A. SAENZ, ESQ. 7 On behalf of Intervenor-Respondents 8 in support of the Petitioners 9 10 11 3 35 ORAL ARGUMENT OF SCOTT A. KELLER, ESQ. On behalf of the Respondents 12 ORAL ARGUMENT OF 13 ERIN E. MURPHY, ESQ., 14 For United States House of Representatives, 15 as amicus curiae, supporting the Respondents 16 REBUTTAL ARGUMENT OF 17 GEN. DONALD B. VERRILLI, JR., ESQ. 18 On behalf of the Petitioners 19 20 21 22 23 24 25 Alderson Reporting Company 45 72 85 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (10:04 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear argument 4 first this morning in Case No. 15-674, United States v. 5 Texas, et al. 6 General Verrilli. 7 ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR. 8 ON BEHALF OF THE PETITIONERS 9 10 GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: 11 The Secretary of Homeland Security has 12 decided to defer removal of the class of aliens who are 13 parents of U.S. citizens and LPRs, have lived in the 14 country continuously since 2010, and not committed 15 crimes. 16 it is lawful. 17 reality that DHS has resources only to remove a fraction 18 of the unlawful aliens, the aliens presently -- present 19 unlawfully in the country now. That policy is lawful and Respondents concede It is fully justified by the fundamental 20 This class of aliens is the lowest priority. 21 And there is a pressing humanitarian concern in avoiding 22 the breakup of families that contain U.S. citizen 23 children. 24 The principal -- 25 JUSTICE GINSBURG: Couldn't the government Alderson Reporting Company Official - Subject to Final Review 4 1 simply, as was suggested in one of the briefs, have 2 given these children -- parents of citizens or LPRs, 3 given them identity cards that say "low priority," and 4 would there be any difference between that and what this 5 DAPA Guidance does? 6 GENERAL VERRILLI: That is -- that's a very 7 important point, Justice Ginsburg. That -- that is 8 precisely what deferred action is. Deferred action is a 9 decision that you were -- that you are a low priority 10 for removal, and it's an official notification to you of 11 that decision. 12 have the lawful authority to do both things: 13 that judgment and to give an identification card. 14 And Respondents have conceded that we CHIEF JUSTICE ROBERTS: To make General, maybe it 15 would make logical progression if you began with your 16 standing argument first. 17 18 19 GENERAL VERRILLI: Yes. And I think this does lead right into the standing argument. I think the principal bone of contention 20 between the -- the Respondents and the United States is 21 over whether the Secretary can also authorize these 22 people to work and accrue ancillary benefits, and 23 Respondents lack standing to challenge that for three 24 fundamental reasons. 25 First, there's -- the injury is not Alderson Reporting Company Official - Subject to Final Review 5 1 redressable, because even if they achieve the -- even if 2 they achieve the injunction that they want, barring us 3 from providing work authorization ancillary benefits, we 4 can, for the reason Justice Ginsburg identified, still 5 provide them with deferred action. 6 they still qualify for a license under deferred action, 7 so there's no redressability. 8 9 And under Texas law, Second, they have not alleged a concrete particularized injury because the costs that they claim 10 now to be an injury are actually the expected and 11 desired result of the policy that exists in current 12 Texas law -- 13 CHIEF JUSTICE ROBERTS: Well, but if -- if 14 they change that policy to avoid the injury that they 15 allege, in other words, if they did not confer -- offer 16 driver's licenses to those who are lawfully present 17 because of your policy, avoided that injury, you would 18 sue them, wouldn't you? 19 GENERAL VERRILLI: 20 we would sue them. 21 But the fundamental -- 22 I'm not sure at all that It would depend on what they did. CHIEF JUSTICE ROBERTS: No, no. What they 23 did -- I'm hypothesizing -- is that they offered 24 driver's license to everyone, but not those who were 25 here under your -- under DAPA, under your proposal. Alderson Reporting Company Official - Subject to Final Review 6 1 GENERAL VERRILLI: Chief Justice, the key 2 word in your question is "hypothesize." 3 point, it seems to me. 4 in their law. 5 And that's the They have not made that change What they -- CHIEF JUSTICE ROBERTS: No, because they 6 have what seems to me a perfectly legitimate policy, is 7 they want driver's license to be available to people who 8 are lawfully present here. 9 government, say, well, these people are lawfully And if you, the Federal 10 present, that means they have to give a driver's license 11 to however many of them, more than half a million 12 people, who would be potentially eligible for them. 13 14 15 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 16 as Your Honor describes it. 17 reflected in the existing law and regulation is quite 18 different, and that's the point. 19 driver's license now to any category of person who has a 20 document from the Federal government, not only saying 21 you're lawfully present, but that you're officially -- 22 we're officially tolerating your presence. 23 The current policy They will give a There are vast numbers of people under 24 existing Texas law that are eligible for a license even 25 though they are not lawfully present. Alderson Reporting Company For example, the Official - Subject to Final Review 7 1 people who receive deferred action for -- based on 2 childhood arrival. 3 who are applicants for adjustment of status of whom 4 there are hundreds of thousands -- 5 But beyond that, for example, people JUSTICE KENNEDY: But suppose -- suppose the 6 State of Texas said this policy that the government has 7 announced is invalid; it violates separation of powers; 8 therefore, we will not issue licenses to this class of 9 persons? 10 11 GENERAL VERRILLI: point -- 12 13 JUSTICE KENNEDY: It seems to me that the Federal government could say this is not for you to say. 14 GENERAL VERRILLI: 15 and we probably would. 16 done it. 17 Well, I think the That's correct. We could But the point is, they haven't And so in order to establish -JUSTICE ALITO: But that's the whole point 18 of this suit, isn't it? 19 driver's licenses to the beneficiaries of DAPA. They don't want to give 20 GENERAL VERRILLI: 21 JUSTICE ALITO: Well, I think -- And unless you can tell us 22 that there is some way that they could achieve that, 23 then I don't see how there is not injury in fact. 24 25 GENERAL VERRILLI: I disagree with that, Justice Alito, but -- Alderson Reporting Company Official - Subject to Final Review 8 1 2 JUSTICE ALITO: You disagree with which part of it? 3 GENERAL VERRILLI: 4 (Laughter.) 5 GENERAL VERRILLI: I think all of it. Texas law and policy now 6 does not express that judgment. 7 to tell you what their policy is now, and what the 8 policy is now -- 9 JUSTICE SOTOMAYOR: You look to their law General, when you say 10 that, I'm looking at their law. 11 they will give licenses to persons granted deferred 12 action on the basis of immigration documentation 13 received with an alien number and from the government. 14 And their law says that So that's what -- you're saying they've 15 already made the determination that they'll give 16 licenses to people with deferred action. 17 GENERAL VERRILLI: Yes, Justice Sotomayor. 18 That's one thing I'm saying that's quite important, but 19 it even goes beyond that. 20 They're -- CHIEF JUSTICE ROBERTS: Oh, but they want to 21 do that. 22 saying if you're lawfully present, you ought to have a 23 driver's license? 24 25 Is there anything wrong with their policy GENERAL VERRILLI: No, but I guess, Mr. Chief Justice, what I'm trying to get across is that the Alderson Reporting Company Official - Subject to Final Review 9 1 policy, as it's written down and which, it seems to me, 2 has to be taken as the authoritative statement of the 3 Texas policy, is not just that they want to give 4 licenses to people who are lawfully present. 5 licenses to all -- to numerous categories of people who, 6 under the substantive theory of law that they are 7 advancing now, would not be eligible -- 8 9 10 CHIEF JUSTICE ROBERTS: Okay. They give So what your argument is then, they should take these people out of eligibility, too. 11 GENERAL VERRILLI: 12 CHIEF JUSTICE ROBERTS: No. My argument -Their argument is, 13 we're going to give driver's license to people subject 14 to deferred action. 15 your injury? 16 And you're saying, okay, that's You can take that away. And I just think that's a real catch-22. 17 If -- if you're injured, you have standing. 18 not injured because you can change your policy and not 19 give driver's license to these people. 20 But you're And I suggest that -- I think you would 21 want -- you would sue them instantly if they said, 22 people here lawfully present under the Federal authority 23 are being discriminated against. 24 argument the government makes on a regular basis. 25 if you don't, the intervenors will sue them. It's a preemption Alderson Reporting Company And They've Official - Subject to Final Review 10 1 2 already said that they think that's illegal. GENERAL VERRILLI: The fundamental problem, 3 Mr. Chief Justice, is -- with that theory -- is that it 4 requires this Court essentially to issue an advisory 5 opinion about whether this new law of theirs would, in 6 fact, be preempted. 7 preempted, but it's up to the judiciary ultimately to 8 decide whether it's preempted. 9 injury to occur, they -- the law -- the judiciary would 10 11 After all, we might think it's So in order for that have to decide it's preempted. And the normal way -- CHIEF JUSTICE ROBERTS: So you're saying 12 they would not have injury because they can do this, and 13 you might lose the suit. 14 15 16 GENERAL VERRILLI: That's correct. It's -- it's hypothetical at this point. JUSTICE KAGAN: I mean, General, I don't 17 understand why you wouldn't lose the suit. 18 Section 1621 says, "States aren't required to give State 19 benefits to nonqualified aliens, including deferred 20 action recipients." 21 22 23 I mean, 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 24 to be able to agree with you about that. 25 1621 actually applies to driver's licenses. Alderson Reporting Company We don't think And it -- Official - Subject to Final Review 11 1 depending on what they did, we might or might not think 2 the law is preempted. 3 step, which would be a significant change from Texas law 4 as it now exists, they really are asking you for an 5 advisory opinion about whether the thing they want to do 6 would be preempted. 7 But until they actually take that I mean, if you think about it -- JUSTICE ALITO: You're saying they have 8 inflicted this injury on themselves because they have 9 options. And one of the options, and I assume the one 10 that they would like to pursue, is to deny driver's 11 licenses to the beneficiaries of DAPA. 12 going to make the argument that they lack standing 13 because they have a viable legal option, I think you 14 have to tell us whether, in the view of the United 15 States, it would be lawful for them to do that. 16 GENERAL VERRILLI: 17 JUSTICE ALITO: And if you're So, it would -- I think the Chief Justice 18 asked you that question before, and you didn't get a 19 chance to answer it. Maybe you could answer it now. 20 GENERAL VERRILLI: It would depend on what 21 they did and why they did it. But it does seem to me, 22 it's fundamental that they have to do it. 23 about it this way -- 24 25 JUSTICE ALITO: I mean, think I mean, if you're saying to -- you're saying to us they lack standing because Alderson Reporting Company Official - Subject to Final Review 12 1 they have an option, but we're not going to tell you now 2 whether it's a lawful option. 3 the -- wait to some point in the future. 4 GENERAL VERRILLI: You'll have to wait down We might -- depending on 5 what they, we might well think it's unlawful. 6 example, if they did try to enact this new law that 7 said, we're going to give licenses to everybody we're 8 giving them to now -- 9 JUSTICE KENNEDY: But there's Article III 10 standing for declaratory relief all the time. 11 this course of action is being compelled on me. 12 a declaratory suit that says that it's void. 13 GENERAL VERRILLI: For You say I want And I think that gets to 14 the point -- that gets to the point, Justice Kennedy. 15 If right now, tomorrow, today instead of suing us they 16 had come into court and said we want a declaratory 17 judgment, we are thinking about -- in light of this 18 change in Federal law, we're thinking about changing our 19 State law to a different law, and we want a declaratory 20 judgment that if we do so, it won't be preempted, I 21 think you would throw that case out in a nanosecond as 22 hypothetical, and that is this case. 23 That is precisely the situation we are in 24 right now. 25 to decide whether they have injury in fact with respect You have to render a judgment on that issue Alderson Reporting Company Official - Subject to Final Review 13 1 to -- 2 CHIEF JUSTICE ROBERTS: Do we really, or is 3 it enough -- is it enough that they would have to be put 4 through litigation in order to escape the policy? 5 say, well, they can just not do this. 6 it's -- you won't dispute, I think, that they will be 7 put through litigation if they do take that out. 8 9 GENERAL VERRILLI: You And I think I don't think that could be enough, Mr. Chief Justice, because you could have 10 said that in Pennsylvania v. New Jersey or in any number 11 of cases, that they may have to incur some cost with 12 respect to -- 13 CHIEF JUSTICE ROBERTS: Well, how is that 14 different? 15 it's subject to some government regulatory program that 16 I think is a taking under -- under existing law, why 17 isn't the answer, well, you should go buy some other 18 land that's not subject to it. 19 by your own action. 20 If I -- if I own, say, a parcel of land and You can avoid the injury And it seems to me that's what you're saying 21 here. 22 driver's license here, and that costs us money. 23 your answer is, well, maybe you don't have to give 24 driver's license. 25 Texas says, our injury is we have to give Go change the policy. GENERAL VERRILLI: It's a difference Alderson Reporting Company And Official - Subject to Final Review 14 1 between -- in your -- in your proposed hypothetical, 2 Mr. Chief Justice, that's a direct action against the 3 land owner by the government. 4 acting directly against Texas. 5 individual aliens, and there's an indirect and 6 incidental effect on Texas. 7 to me, the deeper and broader point of importance here, 8 which is that if you're going to recognize -- and it 9 would be the first time, I think, in -- in our In this case, we're not We're regulating And that gets to, it seems 10 history -- you're going to recognize that kind of 11 incidental/indirect effect as a basis for allowing one 12 government to sue another -- another, then there's 13 really no limit on the kinds of -- 14 JUSTICE SOTOMAYOR: Mr. General, in the 15 normal course of things, let's assume that Texas decides 16 tomorrow to change its law, and it says, now, contrary 17 to what the -- its law says right at this moment that 18 it's not going to give licenses to immigrants with 19 deferred action. 20 that license would sue the State, correct? Presumably, the immigrant who wants 21 GENERAL VERRILLI: 22 JUSTICE SOTOMAYOR: Precisely. And make either an equal 23 protection or any number of preemption argument, 24 whatever. 25 correct? The State could then defend that action, Alderson Reporting Company Official - Subject to Final Review 15 1 GENERAL VERRILLI: 2 JUSTICE SOTOMAYOR: Of course. And it could raise 3 legitimately full standing to raise any defense in law, 4 correct? 5 GENERAL VERRILLI: 6 JUSTICE SOTOMAYOR: 7 Yes. It could then say that DAPA is illegal -- 8 GENERAL VERRILLI: 9 JUSTICE SOTOMAYOR: 10 Yes. -- correct? So there is a cause. It is -- there is a 11 way for it to defend its actions and a way that it will 12 defends its actions. 13 GENERAL VERRILLI: And -- and I think that 14 points out -- I mean, it really goes to what the Court 15 said in Raines v. Byrd. 16 is an important issue that is -- is teed up in front of 17 you, and it is an important issue. 18 point is that the legitimacy of the citing issues of 19 this importance come from deciding the context of a 20 concrete case or controversy, and you don't have that 21 here yet -- 22 You know, it may seem like this JUSTICE BREYER: But, you know, the Your argument is -- do I 23 have this right? 24 State must give a driver's license to a member of the 25 Federal armed forces. Imagine a Federal statute. That's a statute. Alderson Reporting Company Every Second Official - Subject to Final Review 16 1 statute: 2 soldiers to Rhode Island. We are transferring one quarter of a million 3 Now, Rhode Island thinks the first statute 4 is unconstitutional, and it also thinks that the second 5 statute, for some technical reason, is unlawful. 6 only talking about standing. 7 Rhode Island have standing? 8 9 We're In that circumstance, does See, totally analogous. I'm trying to say there is a law, which you say is vague. I'm imagining 10 it's there. 11 license to certain people. 12 law which says, we are sending you a million of those 13 people. 14 those circumstances -- your argument is we don't know if 15 that's true here or not -- but under the ones I 16 hypothesize, is there standing, in your opinion? 17 It says, Texas, you have to give a driver's And then there's a second Now, all I want to know is: Can Texas, under Texas would say the first law is wrong, 18 unconstitutional for some reason. 19 because it technically failed for some reason. 20 have standing to say that? 21 GENERAL VERRILLI: The second is wrong Do they The -- I have to -- I 22 have to caveat my answer, because I think if the second 23 law is an immigration law that says we're going to make 24 an immigration policy judgment that's going to result in 25 additional people being in the State, then I don't think Alderson Reporting Company Official - Subject to Final Review 17 1 they would have standing. 2 But the fundamental point, I think, of 3 importance here is that the premise that the first -- of 4 the first law that they are required to give driver's 5 licences is not present here. 6 JUSTICE BREYER: I have no doubt it isn't 7 present here. 8 is I'm supposed to say if I agree with you. 9 I asked the question to clarify what it GENERAL VERRILLI: And I tried to answer 10 that and tell you why I think the premise is different. 11 I did try to answer you and then tell you why I think 12 the premise is different. 13 But I -- but I do think -- and I think this 14 is -- you know, there's a sort of a 15 shoe-on-the-other-foot issue here. 16 that a State can sue the Federal government based on 17 these kinds of indirect and incidental effects, then it 18 seems to me you'd have to also say that if a State 19 decided, for example, that it wasn't going to enforce 20 its minimum wage law anymore, and as a result, the 21 Federal government had to increase its enforcement costs 22 for Federal minimum wage laws in that State, that the 23 Federal government would then have standing to go into 24 State court and say that the State is violating State 25 law? If you really think I don't think anybody would think that's a valid Alderson Reporting Company Official - Subject to Final Review 18 1 claim. 2 claim. 3 But that's just the flip side of this kind of a CHIEF JUSTICE ROBERTS: Is the injury here 4 any more indirect and speculative than the injury in 5 Massachusetts against EPA? 6 GENERAL VERRILLI: Yes. I -- yes. I think 7 definitely, Mr. Chief Justice. 8 obviously a closely-divided Court in that case, but with 9 respect to the majority opinion, it seems to me there I mean, that was 10 were -- there are two fundamental differences, at least 11 two fundamental differences. 12 One is what the Court said is that under 13 the -- under the Clean Air Act, that Congress had 14 charged the EPA with protecting States and others from 15 the effects of air pollution and then given a specific 16 cause of action to the people whose protection EPA was 17 charged with to sue if EPA wasn't doing its job. 18 that -- and I think this is at page 520 of the 19 opinion -- the Court said was indispensable, was 20 critical to the finding that States got special 21 solicitude and were allowed to sue in a manner where, 22 under Article III, they normally wouldn't be able to 23 sue. 24 25 And In addition -- and in addition, I do think that you do have a quite different situation in that Alderson Reporting Company Official - Subject to Final Review 19 1 there was no way for Massachusetts to avoid the effects 2 about which it was complaining, and there is a way here. 3 So -- so there is a difference. 4 5 CHIEF JUSTICE ROBERTS: you to switch. 6 7 GENERAL VERRILLI: whether I could. 8 9 Maybe I could ask I was just going to ask Thank you. So I think it's important, again, to frame where we are on the merits here, that the -- their -- 10 Texas agrees that the -- that DHS has the authority to 11 defer removal of this class of alien parents of U.S. 12 citizens and LPRs. 13 unreviewable. 14 They agree that that judgment is What we disagree about is whether -- 15 principally, whether we also have the authority to 16 authorize them to work and to accrue some ancillary 17 benefits based on that work. 18 CHIEF JUSTICE ROBERTS: Before you get to 19 that, could I ask you a question about the scope of your 20 argument? 21 GENERAL VERRILLI: 22 CHIEF JUSTICE ROBERTS: Sure. Under your argument, 23 could the President grant deferred removal to every 24 unlawful -- unlawfully present alien in the United 25 States right now? Alderson Reporting Company Official - Subject to Final Review 20 1 GENERAL VERRILLI: 2 CHIEF JUSTICE ROBERTS: 3 GENERAL VERRILLI: Definitely not. Why not? Here are the limits. 4 Because the deferred action has -- over time, there have 5 been built up a set of administrative limits, which I'll 6 talk about, some administrative policy limits, and then 7 there's substantive statutory limits. 8 9 10 The administrative policy limits are these: Deferred action has always been for the lowest priorities for removal. 11 12 And everybody agrees -- CHIEF JUSTICE ROBERTS: I'm sorry. By "administrative," you mean by the Executive branch? 13 GENERAL VERRILLI: 14 CHIEF JUSTICE ROBERTS: Correct. Yes. But -- So that somehow 15 binds the Executive branch now, the fact that -- I mean, 16 this hasn't been approved by the Executive branch prior 17 to this point, either, and yet it's a fairly significant 18 departure. 19 GENERAL VERRILLI: Let me -- let me -- I 20 don't -- I wouldn't agree with that premise, Mr. Chief 21 Justice, but let me walk through it. 22 So it's -- you've got to be the lowest 23 priority. 24 back decades that talk about work authorization related 25 to people at deferred action say that there's got to be It's -- there are -- the regulations going Alderson Reporting Company Official - Subject to Final Review 21 1 a tie to a statutory policy that the Secretary has the 2 authority to implement, such things as foreign 3 relations, humanitarian concerns, or keeping -- or 4 family unity when one family member or more is a U.S. 5 citizen. 6 they've got to be lowest priority; it's got to be 7 grounded in those policy concerns; and then are a number 8 of -- 9 So those -- so you've got to ground it -- JUSTICE SOTOMAYOR: But the Chief is going 10 more fundamentally, General. 11 that the Executive has set for itself now. 12 what keeps you from changing those parameters in the 13 future and simply saying, I have -- under your theory of 14 the case, I have discretion to defer action on 15 everybody? 16 Those are the parameters He's asking I think that's his question. GENERAL VERRILLI: A couple -- a couple of 17 things about that. 18 constraints that exist now. 19 told DHS that it has to prioritize the removal of 20 criminal aliens and aliens detained at the border. 21 There's no way we could give deferred action to those 22 populations consistent with -- 23 24 25 One is there are statutory For example, Congress has CHIEF JUSTICE ROBERTS: criminals. Okay. So not -- not Who else? GENERAL VERRILLI: Not aliens detained at Alderson Reporting Company Official - Subject to Final Review 22 1 2 3 4 the border. CHIEF JUSTICE ROBERTS: Okay. So that's another -- criminals -GENERAL VERRILLI: Seems to me it would 5 follow from that, that people who are recently 6 arrived -- recently made it into the country, if they 7 aren't detained at the border, we couldn't give deferred 8 action to them either, because seems to me that would 9 undermine the policy judgment of trying to maximize -- 10 11 12 CHIEF JUSTICE ROBERTS: Okay. So you have to -- everyone has been here for two years. GENERAL VERRILLI: And then -- and then 13 there are specific statutory provisions that cover some 14 categories of aliens like people with asylum. 15 whole host of things that impose manageable limits. 16 So then a And I think if -- you know, if -- if the 17 Court were to conclude that there is standing -- 18 obviously, we don't think there is, but if the Court 19 were to conclude -- 20 CHIEF JUSTICE ROBERTS: I'm sorry. Just 21 so -- so the categories you say would have to be 22 excluded are criminals, people detained at the border, 23 and people who've been granted asylum. 24 that, the President could grant deferred removal to 25 everyone here. Alderson Reporting Company And other than Official - Subject to Final Review 23 1 GENERAL VERRILLI: No. I'm not saying that. 2 You've got to ground it in affirmative policies like -- 3 like the one here. 4 if you look it the OLC opinion, OLC reached the 5 conclusion that DHS couldn't grant deferred action to 6 the parents of the children who -- parents who -- of 7 people who got deferred action for childhood arrival -- 8 9 And that -- you know, for example, JUSTICE ALITO: But if the President did what the Chief Justice hypothesized, suppose the 10 President said, you know, there was a time when we had 11 open borders in the United States, and I think that's 12 the right policy, so we're just not going to remove 13 anybody. 14 Who could challenge that? GENERAL VERRILLI: Well, obviously, we're 15 doing more or less the opposite now in terms of what 16 we're doing -- 17 JUSTICE ALITO: 18 hypothetical question. 19 challenge that? 20 I understand. It's a Could anybody, in your view, GENERAL VERRILLI: Yeah, I -- yes. I think 21 that would be challengeable under the -- you know, the 22 footnote in Heckler against Chaney. 23 decide that you're not going to enforce the law at all, 24 then there may well be a cause of action to challenge it 25 there, and -- but that's -- that's a million miles from Alderson Reporting Company It says if you just Official - Subject to Final Review 24 1 where we are now. 2 3 And I think the key point is that the policy -- 4 JUSTICE KENNEDY: 5 people from where we are now. 6 GENERAL VERRILLI: 7 big number. 8 9 Well, it's four million Well, you know, that's a You're right, Justice Kennedy. JUSTICE KENNEDY: And that's -- and that's the whole point, is that you've talked about discretion 10 here. 11 discretion. 12 legislative, not an executive act. What we're doing is defining the limits of And it seems to me that that is a 13 GENERAL VERRILLI: 14 JUSTICE KENNEDY: So -All of the cases -- the 15 briefs go on for pages to the effect that the President 16 has admitted a certain number of people and then 17 Congress approves it. 18 backwards. 19 the policy and the Congress is executing it. 20 just upside down. 21 That seems to me to have it It's as if -- that the President is setting GENERAL VERRILLI: That's I don't -- I don't think 22 it's upside down. 23 different in recognition of the -- of the unique nature 24 of immigration policy. 25 I think it's different, and it's JUSTICE GINSBURG: General Verrilli, how Alderson Reporting Company Official - Subject to Final Review 25 1 much -- please, how much of a factor is the reality that 2 we have 11.3 million undocumented aliens in the country, 3 and Congress, the Legislature, has provided funds for 4 removing about four million. 5 have to be set. So inevitably, priorities 6 GENERAL VERRILLI: 7 CHIEF JUSTICE ROBERTS: Right. Exactly. You started out 8 telling us that the enforcement priorities were not at 9 issue; that -- that the problem was the benefits that 10 flow from that, the work authorization, the earned 11 income tax credit, the Social Security benefits, the 12 Medicare benefits. 13 So as I understand it -- and I think this is 14 the point you made -- the other side is not disputing 15 the fact that you have authority to exercise discretion. 16 GENERAL VERRILLI: Correct. And that, I 17 think is the answer to -- that I was going to give to 18 your question, Justice Kennedy. 19 with respect to this -- 20 JUSTICE SOTOMAYOR: And it seems to me, Mr. General, before you 21 go on, I -- just to make sure we have -- we're on the 22 same page, you only deport 400,000, not four million. 23 24 25 GENERAL VERRILLI: It's not four million. Forgive me. JUSTICE SOTOMAYOR: So we have -- Alderson Reporting Company Official - Subject to Final Review 26 1 2 GENERAL VERRILLI: resources for about 400,000. 3 JUSTICE SOTOMAYOR: -- yes. We have Right. So we have -- we have 4 basically 10 million, nine hundred thousand people that 5 cannot be deported because there's not enough resources, 6 correct? 7 GENERAL VERRILLI: 8 JUSTICE SOTOMAYOR: 9 10 That's correct. So they are here whether we want them or not. GENERAL VERRILLI: And the key point is that 11 we have always had a policy that says when you have -- 12 when your presence is going to be officially tolerated, 13 you're not here, you're violating the immigration laws 14 by being here. 15 presence is going to be officially tolerated. 16 you're in that circumstance, we allow you to work 17 because it makes sense to allow you to work. 18 otherwise -- you're going to be here, and otherwise, if 19 you can't work lawfully, you're going to either not be 20 able to support yourself and be forced into the 21 underground economy. 22 You don't have any rights, but your When Because We've had -- CHIEF JUSTICE ROBERTS: I have to ask you 23 about two pages in your reply brief. 24 quote the Guidance that says, "The individuals covered 25 are lawfully present in the United States." Alderson Reporting Company On page 16, you And less Official - Subject to Final Review 27 1 than a page later, you say, "Aliens with deferred action 2 are present in violation of the law." 3 Now, that must have been a hard sentence to 4 write. 5 yet, they're present in violation of the law. 6 7 I mean, they're -- they're lawfully present, and GENERAL VERRILLI: I actually had no trouble writing it, Mr. Chief Justice. 8 (Laughter.) 9 GENERAL VERRILLI: The reason I had no 10 problem writing it is because that phrase, "lawful 11 presence," has caused a terrible amount of confusion in 12 this case; I realize it. 13 it means something different to people in the 14 immigration world. 15 But the reality is it means -- What it means in the immigration world is 16 not that you have a legal right to be in the United 17 States, that your status has changed in any way. 18 you have any defense to removal. 19 those things, and it never has. 20 doesn't -- and so at that fundamental level, we are not 21 trying to change anybody's legal status on the 22 immigration -- 23 That It doesn't mean any of And -- and so it CHIEF JUSTICE ROBERTS: Lawfully present 24 does not mean you're legally present in the United 25 States. Alderson Reporting Company Official - Subject to Final Review 28 1 GENERAL VERRILLI: 2 CHIEF JUSTICE ROBERTS: 3 Right. GENERAL VERRILLI: 5 CHIEF JUSTICE ROBERTS: GENERAL VERRILLI: 8 JUSTICE ALITO: 10 Yes. Lawfully present does not mean you're legally present. 7 9 I'm sorry, that -- just so I get that right. 4 6 Tolerated -- Correct. But they are -- the DAPA beneficiaries are -- may lawfully work in the United States; isn't that correct? 11 GENERAL VERRILLI: 12 JUSTICE ALITO: That's right. And how is it possible to 13 lawfully work in the United States without lawfully 14 being in the United States? 15 GENERAL VERRILLI: There are millions of 16 people, millions of people other than the DAPA 17 recipients about whom this is true right now. 18 gets to the point of why their reading of Section 1324 19 is completely wrong. 20 JUSTICE ALITO: 21 English language. 22 you be -- I'm just talking about the I just don't understand it. 23 GENERAL VERRILLI: 24 JUSTICE ALITO: 25 And this How can Well, let me -- How can you -- how can it be lawful to work here but not lawful to be here? Alderson Reporting Company Official - Subject to Final Review 29 1 GENERAL VERRILLI: It's -- let me just go 2 through the reality here, and -- and I'll give you some 3 sense of just how disruptive a ruling would be to accept 4 their theory on -- on who can lawfully work in the 5 United States. 6 Right now, since 2008, one category of 7 people who can get work authorization are people 8 applying for adjustment of status. 9 million of those to that category of people since 2008, 10 and in the decades before, it was hundreds of thousands 11 of people a year. 12 United States on the theory of having -- on the sense of 13 having lawful status. 14 cancellation of removal, those are people in removal 15 proceedings now since 2008, we've given out 325,000 of 16 those. 17 18 19 We've given out 3.5 They are not lawfully present in the People who have applied for JUSTICE ALITO: But those are statutory categories, are they not? GENERAL VERRILLI: No, no. There's no 20 statutory authority to do either one of two things: 21 either to say that they're lawfully present in the 22 United States; there's no authority for that. 23 is the key thing for their work authorization argument. 24 There is no statutory authority to grant work 25 authorization to those categories of people -- Alderson Reporting Company And this Official - Subject to Final Review 30 1 CHIEF JUSTICE ROBERTS: In those other -- in 2 those other categories, did you say that those people 3 were lawfully present in the United States? 4 GENERAL VERRILLI: 5 CHIEF JUSTICE ROBERTS: 6 No. But -But you said that here. 7 GENERAL VERRILLI: But the -- but the key 8 point is that their argument about why we can't give 9 work authorization is a statutory argument. They say 10 that it's under -- that 1324 passed in 1986 extinguished 11 our right to give -- our -- our authority to give work 12 authorization to people whose presence we are officially 13 tolerating. 14 What I'm saying is that that is not a 15 plausible reading -- 16 the text. 17 promulgated which considered that very question of 18 whether passage of that statute restricted INS to giving 19 out work authorization only to people who are in the 20 category specifically identified in the statute. 21 rejected that as implausible and inconsistent with the 22 theory. 23 part of the Chevron deference. it's not a plausible reading of There's a 1987 regulation that -- that INS That's been on the books for 30 years. 24 And then the third point -- 25 JUSTICE KAGAN: General -- please. Alderson Reporting Company INS It's a I'm Official - Subject to Final Review 31 1 sorry. Go ahead. 2 GENERAL VERRILLI: The third point is the 3 consequences point. 4 says -- you know, if you -- if you go through the reg 5 that's in the petition, the Appendix that lists all the 6 different categories of people who get work 7 authorization, their reading of 1324 knocks out like 15 8 or 16 of those categories. 9 not -- it doesn't just apply here. 10 11 This argument they are making It just doesn't -- it's JUSTICE SOTOMAYOR: attacking that 1986 -- 12 GENERAL VERRILLI: 13 JUSTICE SOTOMAYOR: 14 GENERAL VERRILLI: 15 JUSTICE SOTOMAYOR: -- regulation? Absolutely. They could And that would be under Section 553(c)? 18 19 Yes, they could -- petition for rulemaking. 16 17 Do they have a way of GENERAL VERRILLI: Right. They could petition the -- 20 JUSTICE SOTOMAYOR: Did they do that here? 21 GENERAL VERRILLI: No, they did not do that 22 here. If -- 23 JUSTICE KAGAN: 24 GENERAL VERRILLI: 25 JUSTICE KAGAN: Could -I'm sorry, Justice Kagan. Could you have done the Alderson Reporting Company Official - Subject to Final Review 32 1 exact same thing without using that phrase in the DAPA 2 documents? 3 GENERAL VERRILLI: Yeah, absolutely. And, 4 in fact, if the Court thinks it's a problem and wants to 5 put a red pencil through it, it's totally -- it's 6 totally fine. 7 the -- the issues that it's caused. 8 significance is a technical legal significance with 9 respect to eligibility for Social Security benefits and Really. It doesn't -- I -- I understand But its legal 10 for this tolling provision, and that really -- you know, 11 those -- that's the tail on the dog and the flea on the 12 tail of the dog. 13 JUSTICE KENNEDY: You were asked about an 14 APA action. 15 be entitled at least to ask for a preliminary injunction 16 while the notice-and-comment procedure was -- If they brought an APA action, would they 17 GENERAL VERRILLI: 18 JUSTICE KENNEDY: 19 GENERAL VERRILLI: I don't --- commencing? You know, forgive me, 20 Justice Kennedy. 21 my doubts if they would be entitled to get a preliminary 22 injunction under those circumstances. 23 I haven't thought about that. JUSTICE KENNEDY: I have They would have -- they 24 would have standing to object if the rulemaking hearing 25 came out the wrong way. Alderson Reporting Company Official - Subject to Final Review 33 1 GENERAL VERRILLI: Oh, I think if we're -- 2 if we're talking about whether there's a -- a 3 notice-and-comment issue here, I -- you've decided that 4 they have standing. 5 have standing to get to the notice-and-comment issue 6 here, they'd have standing in a notice-and-comment 7 proceeding, sure. 8 9 10 So if they have standing -- if you CHIEF JUSTICE ROBERTS: announced -JUSTICE BREYER: But they don't have 11 standing in the Court, necessarily. 12 people have standing -- 13 GENERAL VERRILLI: 14 JUSTICE BREYER: 15 GENERAL VERRILLI: 16 17 General, when he I mean, loads of Yeah, no --- to bring actions in -Sorry, I wasn't clear, Justice Breyer. If this Court decides -- if this Court gets 18 to the notice-and-comment issue here, this Court will 19 have decided that they have Article III standing. 20 if they do, then they would then, too. 21 CHIEF JUSTICE ROBERTS: And When he announced -- 22 when he announced -- the President announced DACA, the 23 predecessor provision, he said that if you broadened it 24 -- this is a quote, "Then, essentially, I would be 25 ignoring the law in a way that I think would be very Alderson Reporting Company Official - Subject to Final Review 34 1 difficult to defend legally." 2 about? 3 GENERAL VERRILLI: What was he talking So -- so I think two -- 4 there's two possible things. 5 what DAPA does, which is provide tolerated presence and 6 essentially the ability to work. 7 actually going to give these people lawful permanent 8 resident status or legal status, that would be going 9 further. 10 11 12 13 14 One is what DACA does is If he had said, I'm CHIEF JUSTICE ROBERTS: Or say -- or say they were lawfully present. GENERAL VERRILLI: And -- and well, but -- but as I said, I -- you know, I really think that -And then -- and then second, the other thing 15 is, you know, maybe he thought he couldn't extend it at 16 that time to DAPA. 17 that the President and the Secretary went to the Office 18 of Legal Counsel and asked for an opinion about the 19 scope of their authority to -- to -- the scope of this 20 discretionary authority, and they got one. 21 exercised it consistently with that and up to the limits 22 of that and no further. But, you know, what happened here is And they 23 And so, you know, I do think whatever the 24 President may have met -- meant, we went through that 25 process, we came to that conclusion, and we -- and acted Alderson Reporting Company Official - Subject to Final Review 35 1 on that conclusion and respecting the limits that OLC 2 decided. 3 4 JUSTICE GINSBURG: challenge to DAPA in it? 5 GENERAL VERRILLI: 6 legal matter is no different. 7 8 There's -- there's no No, right, which, as a If I might reserve the balance of my time. Thank you. 9 CHIEF JUSTICE ROBERTS: Thank you, General. 10 Mr. Saenz. 11 ORAL ARGUMENT OF THOMAS A. SAENZ 12 ON BEHALF OF THE INTERVENOR-RESPONDENTS 13 IN SUPPORT OF THE PETITIONERS 14 15 MR. SAENZ: Mr. Chief Justice, and may it please the Court: 16 The Jane Does, three Texas mothers of U.S. 17 citizen children, seek the opportunity to apply for 18 discretionary, temporary and revocable relief from the 19 daily fear that they will be separated from their 20 families and detained or removed from their homes under 21 the current nonuniform and frequently arbitrary Federal 22 immigration enforcement system, which fails to provide 23 any reliable opportunity to be identified as low 24 priority. 25 Their own State of Texas, through this suit, Alderson Reporting Company Official - Subject to Final Review 36 1 has blocked the Guidance that would secure the Jane Does 2 an opportunity to step forward, register and apply and 3 obtain a timely decision with respect to deferred 4 action. 5 speculative budgetary injury that contradicts the 6 State's own legislative decision, after balancing all 7 policy considerations to subsidize and encourage the 8 acquisition of driver's licenses with no annual or 9 cumulative limit on subsidies in that form. Texas does so based on asserted indirect and 10 CHIEF JUSTICE ROBERTS: Do you think it 11 would be illegal if Texas adopted a policy saying 12 everyone lawfully present in Texas except people subject 13 to DAPA get a driver's license? 14 MR. SAENZ: I think it would be, in candor, 15 subject to a challenge that would revolve around the 16 circumstances and the reasoning behind that new 17 legislation. 18 Texas has not done that. 19 its legislative process would result in determining that 20 its previous decision that subsidized licenses make 21 sense without limit has some endpoint. 22 that you've described where it specifically targets one 23 set of deferred action recipients would certainly raise 24 questions. 25 It's important, of course, to note that And there's no indication that The circumstance It would be resolved if -JUSTICE SOTOMAYOR: How about if they just Alderson Reporting Company Official - Subject to Final Review 37 1 said -- let's take it out of DAPA -- if they just said, 2 you know something? 3 people. 4 political refugee, the people waiting for a different 5 status -- we're just going to do it for everybody. 6 There's too many deferred action It doesn't matter why you're deferred -- MR. SAENZ: In that circumstance, I think 7 it, too, would be subject to challenge. 8 different challenge because of circumstances, and the 9 reasoning would be different. It would be a There would be equal 10 protection claims. 11 And those would be resolved in the kind of concrete 12 clash of real interest that this Court has indicated 13 Article III supports. 14 defending a decision it has made to change its law and 15 to keep that law in place. 16 aggrieved individuals who would have been denied a 17 driver's license because of that change. 18 19 20 There might be preemption claims. You would have the State of Texas Then you would have JUSTICE SOTOMAYOR: Not every State grants licenses to deferred action individuals, do they? MR. SAENZ: That's correct, Your Honor. In 21 this case, it would arise in the context of a change 22 which could raise equal protection concerns to be 23 resolved in the kind of concrete clash of interest that 24 this Court has indicated are behind Article III. 25 I think it's important to note that not only Alderson Reporting Company Official - Subject to Final Review 38 1 2 has Texas not changed its policy -JUSTICE KAGAN: Do I take it from the way 3 you are phrasing this that you actually think that the 4 equal protection concerns would be more serious than the 5 preemption concerns? 6 MR. SAENZ: I think it depends on the 7 circumstances of how Texas is to make its decision. 8 the more reason to wait until it's actually made a 9 decision through a legislative process where there would All 10 be a record of why the legislators chose to change from 11 a policy that currently provides licenses to anyone who 12 can demonstrate that they are authorized to be in the 13 United States, to something that would leave some folks 14 in that category out. 15 If they would decide that tolerated presence 16 is not authorization, for example, we would have a 17 record of why they made that decision. 18 are not there yet because Texas has not made a decision 19 to change what its current policy is, and there is no 20 indication that -- 21 JUSTICE BREYER: Of course, we In -- in the record, that 22 you're more familiar with than I, and I would ask the 23 other side the same question, I've read in the briefs 24 quite a lot that the reason that they don't want to give 25 driver's licenses to these 500,000 extra people is it's Alderson Reporting Company Official - Subject to Final Review 39 1 expensive. 2 Is there any other reason that's in this 3 record, such as -- we could imagine other reasons. 4 there any serious effort to rest their claim? 5 want to give them licenses on anything other than money? 6 MR. SAENZ: 7 JUSTICE BREYER: 8 MR. SAENZ: 9 that, in the record -- Is We don't Yes, Your Honor. What? Governor Abbot has indicated 10 JUSTICE BREYER: 11 MR. SAENZ: In the record here. Yes, it's in the record here, I 12 believe, Your Honor, that, in fact, this is a political 13 dispute. 14 the Administration, though they have conceded in this 15 case that it is within the Executive's discretionary 16 authority. 17 They do not agree with the policy adopted by JUSTICE BREYER: You're talking about in 18 general. 19 Texas is hurt, specifically, not a political 20 disagreement. 21 these people driver's licenses? I'm focusing on the narrow question of how How are they specifically hurt by giving 22 MR. SAENZ: 23 JUSTICE BREYER: 24 25 Your Honor, they -One way is it costs them money. MR. SAENZ: Yes. Alderson Reporting Company Official - Subject to Final Review 40 1 JUSTICE BREYER: 2 MR. SAENZ: 3 Are there other ways? No, Your Honor. That's the only thing they put forward in one -- 4 JUSTICE BREYER: 5 MR. SAENZ: That's the answer. And, in fact, it shows that they 6 believe they would face additional expenses, though 7 there's not really enough to conclude that it would 8 change the State's previous determination, taking into 9 account those costs from every subsidized license -- 10 11 CHIEF JUSTICE ROBERTS: Isn't -- isn't losing money the classic case for standing? 12 MR. SAENZ: It's a classic case for a 13 private individual, Your Honor, but here, we're talking 14 about a State that has made a decision, as States often 15 do, to spend money by subsidizing licenses because it's 16 balanced other considerations, including -- 17 CHIEF JUSTICE ROBERTS: We said in 18 Massachusetts against EPA that we have a special 19 solicitude for the claims of the States. 20 MR. SAENZ: Yes. In that case, it was not a 21 financial claim. 22 claim related to the State's quasi-sovereign interest 23 over land. 24 25 As you know, Your Honor, it was a In addition, as General Verrilli has indicated, there was a procedural right within the Clean Alderson Reporting Company Official - Subject to Final Review 41 1 Air Act that does not exist here. 2 procedural right were to be established under the APA 3 itself, there is no limit to the number of States that 4 could come forward to challenge any domestic policy of 5 any kind by this or any future Administration. 6 JUSTICE ALITO: Indeed, if a If an employer took the 7 position that the employer was not going to hire a DAPA 8 beneficiary because the employer believes that they are 9 not -- that they are not lawfully authorized to work, 10 would prefer someone else over them, could that person 11 sue on any theory of discrimination, for example, under 12 Section 1981? 13 MR. SAENZ: They could, Your Honor. And -- 14 and the outcome of that case, I think, has not been 15 clearly established by precedent so far. 16 be a clash between folks with concrete interest, an 17 employer who wants to hire someone, not the individual 18 who -- 19 JUSTICE ALITO: If that's true then, DAPA 20 gives them a legal right. 21 them in a low-priority prosecution status. 22 MR. SAENZ: But it would It's more than just putting I think it's important to note, 23 Your Honor, that work authorization is a separate 24 determination from deferred action itself. 25 who receives deferred action will receive work Alderson Reporting Company Not everyone Official - Subject to Final Review 42 1 authorization. 2 I also think -- JUSTICE ALITO: But work authorization, in 3 your view, gives them a legal right they did not have 4 before. 5 MR. SAENZ: It gives them the right to work 6 with authorization, certainly. 7 go back to standing and point out that work 8 authorization has nothing whatsoever to do with driver's 9 licenses in Texas, where the test is authorized to be in 10 However, I also need to the U.S. -- 11 JUSTICE GINSBURG: When you -- when you 12 answered the question about -- you said there might be a 13 1981 suit. You are not saying who would win that suit. 14 MR. SAENZ: 15 JUSTICE GINSBURG: 16 question. 17 can sue. 18 That's correct. You're saying it's a Not that they have a legal right, but anyone You can always sue. MR. SAENZ: It's far from clear, I think. 19 The precedent is not clear enough to determine the 20 outcome of that case. 21 22 23 JUSTICE ALITO: What is -- but what is your position on that? MR. SAENZ: Our position would be that it is 24 something to be litigated. 25 candor, we have litigated it to a settlement. In fact, to be -- in all Alderson Reporting Company So, no, Official - Subject to Final Review 43 1 no established precedent to make it clear one way or the 2 other. 3 4 JUSTICE ALITO: But you believe they do have the right? 5 MR. SAENZ: They do have work authorization, 6 and that certainly means that they ought not be subject 7 to unreasonable discriminatory bases for denying their 8 work. 9 authorization. It's different from when they don't have work But going back to the work 10 authorization, it has no relationship to the driver's 11 licenses. 12 ever applying or receiving work authorization. 13 In fact, they could receive licenses without There's no connection between the two. 14 Therefore, any concerns about work authorization would 15 not redress -- redress the injury behind standing of the 16 State of Texas. 17 JUSTICE ALITO: In the Whiting case a few 18 terms ago, the Court upheld an Arizona statute that 19 imposed pretty severe civil penalties on an employer who 20 employed individuals who were not authorized to work. 21 So if an employer in Arizona hires DAPA beneficiaries 22 and the State attempts to impose those civil penalties 23 on that employer, I assume that you believe that DAPA 24 would provide a legal defense to that? 25 MR. SAENZ: I believe there would be a Alderson Reporting Company Official - Subject to Final Review 44 1 defense, but before that, because the Whiting case 2 involved a requirement to use either by system under the 3 verified system, those who were work authorized, whether 4 through deferred action or otherwise, should come back 5 as authorized workers. 6 So I think the State of Arizona, which 7 premised its statute in part to receive this Court's 8 blessing of that statute on relying on Federal decision 9 makers, would not be in a position to engage in what 10 you've described. 11 JUSTICE ALITO: Well, prior to DAPA, if the 12 employer had employed these individuals, the employer 13 would be subject to those penalties, would it not? 14 MR. SAENZ: 15 JUSTICE ALITO: 16 17 That is correct. And after DAPA, it would not be. MR. SAENZ: Work authorization is an 18 authorization to work that is separate from the 19 deferred-action determination. 20 Texas has conceded the deferred-action determination and 21 seems to be focusing on work authorization. 22 work authorization has absolutely no relationship to the 23 alleged injury of driver's licenses. Basically, the State of 24 I see my time is up, Your Honor. 25 CHIEF JUSTICE ROBERTS: Alderson Reporting Company But that Thank you, Official - Subject to Final Review 45 1 Mr. Saenz. 2 General Keller. 3 ORAL ARGUMENT OF SCOTT A. KELLER 4 ON BEHALF OF THE RESPONDENTS 5 6 MR. KELLER: Thank you, Mr. Chief Justice, and may it please the Court: 7 DAPA is an unprecedented unlawful assertion 8 of executive power. 9 changes in immigration policy in our nation's history -- 10 DAPA would be one of the largest JUSTICE SOTOMAYOR: How can you say that? I 11 mean, we have the Fairness Act that happened in 1990. 12 It granted basically the same thing, deferred action and 13 work authorization, to 1.5 million people out of 4 14 million. 15 population of the time was affected. 16 estimate is that only 35 percent are affected. That was a -- 40 percent of the immigrant Here, the best 17 So at least once before, the President has 18 taken action that has a greater percentage effect than 19 now. 20 people? So why is it the largest? 21 MR. KELLER: Is it the number of Well, the Family Fairness 22 Program, first of all, was done pursuant to statutory 23 authority. 24 was not an extra statutory deferred action program. 25 It was a voluntary departure program. It Also, I believe only 47,000 people actually Alderson Reporting Company Official - Subject to Final Review 46 1 got relief there. 2 3 And what Congress did in 1996 after the Family Fairness Program -- 4 JUSTICE SOTOMAYOR: Well, that's because 5 Congress decided to step in. 6 that's decided -- some members of the Congress have 7 decided they don't like it, and so Congress has remained 8 silent. 9 the election or whenever, Congress can't step in and do 10 Here, we have a Congress It doesn't mean that at some later point after what it wants to do. 11 MR. KELLER: But -- but, Justice Sotomayor, 12 I think that's backwards. 13 statutory authority first for the Executive to be able 14 to act. 15 economic significance, it would have to do so expressly. Congress has to grant the And to do so, on a question that's of this deep 16 JUSTICE SOTOMAYOR: 17 saying that, "deep economic significance." 18 11 million unauthorized aliens are here in the shadows. 19 They are affecting the economy whether we want to or 20 not. 21 You know, you keep Those nearly The answer is, if Congress really wanted not 22 to have an economic impact, it would -- it would allot 23 the amount of money necessary to deport them, but it 24 hasn't. 25 MR. KELLER: But what Congress did in 1986 Alderson Reporting Company Official - Subject to Final Review 47 1 with work authorization, and 1996 with benefits, is it 2 restricted work and benefits as an alternative mechanism 3 to enforce immigration law. 4 there are going to be people in the country that are 5 unlawfully present, and yet, Congress put forward those 6 barriers to work and to benefits precisely to deter 7 unlawful immigration. 8 do here is flout that determination. 9 Those judgments acknowledge What the Executive is trying to JUSTICE SOTOMAYOR: Except that the -- the 10 work authorization ability of the Attorney General to do 11 has been clearly stated since 1986, and Congress hasn't 12 taken that away. 13 still has not undone the 1986 regulation. 14 It may at some later point, but it MR. KELLER: But in 1986, Congress passed a 15 comprehensive framework for combatting the employment of 16 unauthorized aliens. 17 the past practice and enact a general Federal ban on the 18 employment of unauthorized aliens. 19 That was a decision to repudiate JUSTICE SOTOMAYOR: And -- and the 20 regulation permitting the Attorney General to give work 21 authorization to deferred-action individuals has stood 22 since that time. 23 MR. KELLER: But when that regulation was 24 passed in 1987, the Executive said that the number 25 covered by that regulation was so small as, quote, "to Alderson Reporting Company Official - Subject to Final Review 48 1 be not worth recording statistically," unquote, and, 2 quote, "the impact on the labor market is minimal," 3 unquote. 4 So regardless of what Congress may have 5 acquiesced to afterwards, that regulation has always 6 been known as being for a small class of individuals 7 for deferred action. 8 9 JUSTICE SOTOMAYOR: a large class. But it's been applied to It was applied to a large class in 1990. 10 1.5 million out of four million. 11 illegal population. 12 number, and Congress didn't act thereafter. 13 expanded the program the President had started. 14 40 percent of the That was a fairly significant MR. KELLER: No. In fact, it The 1990 Family Fairness 15 Program was voluntary departure with statutory 16 authority. 17 120 days. 18 Congress did that, it could no longer authorize 19 employment under that voluntary departure program. Congress responded in 1996 by capping it at And the Executive acknowledged that when 20 JUSTICE SOTOMAYOR: 21 MR. KELLER: Exactly. But here, with deferred action, 22 when they've only -- the Executive has only been 23 granting 500 to 1000 deferred action permits a year, 24 there's no way Congress would have acquiesced to 25 granting four million permits than in a program like Alderson Reporting Company Official - Subject to Final Review 49 1 2 this -JUSTICE SOTOMAYOR: Well, it has -- it has 3 acquiesced to larger numbers of Salvadorians, 4 Guatemalans, Hondurans, Haitians, Chinese, the TNU visa 5 applications, those numbers have been much larger than 6 the limited numbers you're quoting right now. 7 MR. KELLER: And those programs would have 8 been under temporary protective status; humanitarian 9 parole, deferred enforced departure, which is justified 10 -- and has been, at least, under the President's Article 11 II power, and there's no suggestion that -- here DAPA is 12 unprecedented because this is a extra statutory deferred 13 action program that is not bridging lawful status. 14 aliens do not have a preexisting status, and they don't 15 have an eminent status. 16 JUSTICE KAGAN: The General, could I take you 17 back a few steps? 18 times that you've essentially conceded the legality of 19 DAPA taking out the work authorization and the Social 20 Security benefits; is that correct? 21 MR. KELLER: General Verrilli said a couple of No. I'll be very clear. When 22 the Executive is forbearing from removal on a 23 case-by-case basis, that is what this Court in Reno 24 noted was deferred action enforcement discretion. 25 when the Executive is transforming unlawful presence Alderson Reporting Company But Official - Subject to Final Review 50 1 into lawful presence, and granting eligibility for work 2 authorization and Medicare -- 3 JUSTICE KAGAN: Let me make sure I 4 understand that. 5 could do this case-by-case, one by one with respect to 6 all the people in the class, but that the government 7 cannot identify the entire class and say we're 8 forbearing from enforcement; is that correct? 9 You're saying that the government MR. KELLER: While that would be a harder, 10 tougher case, I do believe that they could do it class 11 based if they were simply forbearing from removal. 12 JUSTICE KAGAN: So that's what I asked 13 originally. 14 removal, and there was not work authorization attached 15 to it, and there was not Social Security or any other 16 benefits attached to it, are you conceding that? 17 If they were simply forbearing from MR. KELLER: In this case, given that they 18 are removing 400,000 people a year, we admit that they 19 could do forbearance from removal. 20 do is grant authorization to be in the country. 21 There's a -- 22 JUSTICE GINSBURG: But what they can't Can I -- can I ask you 23 specifically? 24 that's -- it says that the Executive could give cards, 25 identification cards to all these people saying "low You have a statement in your brief, and Alderson Reporting Company Official - Subject to Final Review 51 1 priority." 2 what -- what you mean? 3 work authorizations, Social Security, but the 4 government, not one by one, but to give everyone who 5 fits into this category a card that says low priority? 6 Are you adhering to that? Is -- is that These people you're objecting to MR. KELLER: The government, as part of its 7 enforcement discretion, could do that. 8 different than what they're doing here where they're 9 granting lawful presence. But that's very And that matters because 10 that's why we have to grant driver's license. 11 why they get -- 12 JUSTICE KAGAN: That's General, are you -- are you 13 just referring to that single phrase in the DAPA 14 memorandum? 15 General Verrilli, of course, says you could strike that 16 phrase today if you wanted to; that that phrase really 17 has no legal consequence whatsoever; that all this 18 document does is do exactly what you said, which is to 19 grant forbearance, to tell people we are -- you are not 20 our enforcement priority, we are not going to deport you 21 until we say otherwise, which we can tomorrow too. 22 Is that what you're referring to? MR. KELLER: Because That lawful presence phrase is 23 key because that's the first time in a deferred-action 24 program the Executive has taken that position. 25 if that phrase were struck, that would still not cure Alderson Reporting Company But even Official - Subject to Final Review 52 1 the defect. 2 Executive is doing when they're granting deferred action 3 is they are affirmatively granting a status. 4 know that from their own benefits regulations, which say 5 -- this is H.C.F.R. 1.3. 6 qualifies if you're in deferred action status. 7 sub B says, well, just because we're forbearing from 8 removal, that doesn't necessarily mean that you're 9 lawfully present. 10 And the reason is because what the And we Sub A says lawfully present And then And so what is going on here is a 11 transformation of deferred action from what this Court 12 recognized in Reno to something far more than 13 forbearance from removal. 14 that status then entails certain things beyond even 15 Medicare and Social Security. 16 It is granting a status, and JUSTICE KAGAN: For instance -- I guess -- I really did want 17 to know, just take out the work authorization, take out 18 the Social Security, and take out that phrase. 19 -- can the government say to all of these people, and 20 say it all at once, not one by one, yes, you're a low -- 21 all of you are low priority, and we will not be coming 22 after you, and we will not deport you unless we change 23 our minds. 24 25 MR. KELLER: Can the And Justice Kagan, they can do that, and they can do that under the unchallenged Alderson Reporting Company Official - Subject to Final Review 53 1 prioritization memo. 2 deferred action that grants a status under the benefits 3 regulation -- 4 5 JUSTICE KAGAN: MR. KELLER: It is a label, but it's a label that Congress created -- 8 9 I think that's just a label. Can they do that? 6 7 But what they can't do is say it's JUSTICE KAGAN: Well, my hypothetical is -- I mean, you're suggesting that the label has some legal 10 consequence. 11 these however many million people it is, you will not be 12 deported unless we change our minds. 13 14 And my hypothetical is we just say to MR. KELLER: yes. If that's all they were doing But as soon as they link it -- 15 JUSTICE KAGAN: 16 millions of people they could do that? 17 it all at once. 18 MR. KELLER: 19 abdicating. 20 prioritization -- 21 Can they do that? Even though it's many And they can do Yes, as long as they're not And here, we are not challenging the JUSTICE KAGAN: Okay. So if that's right, 22 then it seems to me your real gripe here -- and you -- 23 maybe it's a real gripe -- your real gripe here is to 24 the work authorization piece and to the benefits pieces; 25 is that right? Alderson Reporting Company Official - Subject to Final Review 54 1 2 MR. KELLER: And the granting of lawful presence, because that is what's going to -- 3 JUSTICE KAGAN: Well -- and that's just a 4 label that General Verrilli says they could strike out 5 in a moment. 6 MR. KELLER: Well, that's -- that's their 7 position, but that's wrong. 8 wrong -- 9 JUSTICE KAGAN: 10 MR. KELLER: 11 (Laughter.) 12 MR. KELLER: 13 JUSTICE ALITO: 14 Well, it's their memorandum. It is their memorandum. And it's -But isn't it a statutory term? 15 MR. KELLER: 16 JUSTICE ALITO: 17 And the reason it's It is -Does the term "lawful presence" appear in statutes enacted by Congress? 18 MR. KELLER: It does. It appears in IIRIRA, 19 the re-entry bar, it appears in the Social Security and 20 Medicare's -- it -- it appears in the gun possession 21 statute. 22 guns. 23 Fifth Circuit. 24 advanced parole, which we now know apparently some DACA 25 recipients have gotten green cards and a path to "Lawful presence" allows an alien to possess That's the Oriana case that we cite from the And their treating it is also allowing Alderson Reporting Company Official - Subject to Final Review 55 1 citizenship. 2 JUSTICE KAGAN: But then it seems to me, 3 General Keller, that your -- that what you should be 4 attacking is not DAPA. 5 the work authorization regulations that the DHS, or 6 before that the INA, has had for 30 years. 7 should be attacking other connections that DHS is making 8 with respect to these people, but not DAPA itself. 9 MR. KELLER: What you should be attacking is Or you But Justice Kagan, I think it 10 is DAPA itself that we're challenging. 11 why is because that is what is transforming unlawful 12 conduct into authorized lawful conduct -- 13 JUSTICE GINSBURG: And the reason Where does it say that in 14 DAPA? 15 anything in it about work authorization or about Social 16 Security. We have the DAPA directive. 17 MR. KELLER: I didn't see The DAPA directive does not 18 mention Social Security. 19 authorization. 20 from it: 21 period of time, an individual is permitted to be 22 lawfully present in the United States." 23 It does mention work This is Pet. App. 413a. And I'll quote "Deferred action means that for a specified Now, the Executive wants to take the 24 position that that has no legal consequence. 25 the OLC memo at JA 76 -- and this has been misquoted in Alderson Reporting Company Of course, Official - Subject to Final Review 56 1 their reply brief -- said that what's going on with 2 tolerated presence is it is -- the forward action will 3 be toleration of an alien's continued unlawful presence. 4 Now, if it's continued unlawful presence, 5 they're not authorized to be in the country; we don't 6 have to issue driver's license. 7 action and gun -- sorry -- they can't get Medicare, 8 Social Security, gun possession. 9 JUSTICE GINSBURG: They can't get deferred You tie the driver's 10 license to work authorization? 11 this deferred status but isn't working. 12 under Texas law, do they get driver's licenses? 13 MR. KELLER: Let's say somebody is in Do they -- Under Texas law -- and this is 14 our Texas statute -- if someone is authorized to be in 15 the United States, they're eligible for a driver's 16 license. 17 18 JUSTICE GINSBURG: And it -- it sounds like they don't have to have any work authorization. 19 MR. KELLER: 20 be authorized to be in the country. 21 That's correct. They need to But to give some context to how this works, 22 we have to rely on the Federal government immigration 23 classifications. 24 is eligible for a driver's license. We run that through 25 the Federal save background system. So we ask the I mean, we determine whether someone Alderson Reporting Company Official - Subject to Final Review 57 1 Federal government, is this individual authorized to be 2 in the country? 3 They say yes or no. CHIEF JUSTICE ROBERTS: Well, the government 4 also says you don't have to do that, or maybe you don't 5 have to do that and maybe -- maybe or not they won't sue 6 you. 7 driver's license? But why don't you go ahead and not give them 8 9 MR. KELLER: Well, I -- I think, as Your Honor had suggested before, that we are in a 10 catch-22 here. 11 dollars of financial harm, which -- which is a 12 quintessential Article III injury, or we have to change 13 our law and somehow we have to come up with a different 14 background check system. 15 policy. 16 Either we have to not incur millions of We wouldn't have a uniform JUSTICE SOTOMAYOR: I'm sorry. How does 17 somebody get a license in Texas? 18 New York and Washington, because I lived in both places. 19 But I don't know how to do it in Texas. 20 and you do what? 21 MR. KELLER: I know how to do it in Do you go up, You -- you would go to a 22 Department of Motor Vehicles. 23 documentation showing who you are and that you're 24 eligible for a license. 25 You would show the Now, in the context of aliens -- and this is Alderson Reporting Company Official - Subject to Final Review 58 1 at JA 377 to 382 outlining the process -- then the State 2 verifies that the individual has authorization to be in 3 the country. 4 And that's sort of the Federal -JUSTICE SOTOMAYOR: All right. Now, I do 5 know, because I've experienced it, that lines are very 6 long at DMVs. 7 And I know that they leave the next day when they 8 haven't gotten to them. 9 It's not an ideal situation. Sometimes people wait the entire day. And they keep coming back. Most States, to avoid the 10 frustration, do ramp up, but many States don't. 11 just keep coming back until their license can be 12 processed. 13 So why is it that you have to spend all this 14 money? 15 let people wait on line? 16 People Why can't you just have your regular process and MR. KELLER: Well, first of all, under the 17 Federal REAL ID Act, if our State's driver's license 18 recipients want to be able to use that license to get 19 through airport securities, TSA security, there has to 20 be integrity in the license for the Federal government. 21 And so we have to check whether an alien is actually -- 22 JUSTICE SOTOMAYOR: Fine. I was just 23 saying, why do you have to ramp up? 24 of the allegations -- I haven't really gone through it 25 carefully enough or assume it's true -- claims that your Alderson Reporting Company This -- I mean, one Official - Subject to Final Review 59 1 affidavit estimating losses in your process is made up 2 basically because A, there's already a built-in profit 3 from profiting licenses of $25, that you really don't 4 know if you have to add all this personnel, because 5 every five million people are not going to walk into DMV 6 in one day. 7 less no matter what, because not everybody -- not all 8 5 million are going to want licenses to start with. 9 10 And that the numbers are going to be much So the question I have is, why do you have to ramp up? 11 Why can't you just let people wait on line? MR. KELLER: Yeah. So this is at JA 377 to 12 382. 13 a spike in the applicants for driver's licenses, and 14 there are much more to do than simply granting a 15 license. 16 paperwork, making other determinations. And the reason is, is because there's going to be There would have to be processing the 17 But in any event, that -- 18 JUSTICE SOTOMAYOR: But you do that in the 19 speed you do it in. 20 paper when I was there, and it took weeks for me to get 21 the regular license while the motor vehicle bureau did 22 what it was going to do as fast or as slow as it wanted 23 to do it. 24 25 Meaning, I got a temporary piece of MR. KELLER: Well, and here, we have a factfinding that we would incur these costs. Alderson Reporting Company Neither Official - Subject to Final Review 60 1 parties or my friends on the other side of -- said that 2 this clear error. 3 4 JUSTICE SOTOMAYOR: MR. KELLER: It is a jurisdictional standing question. 7 8 This is a jurisdictional standing question. 5 6 The budget document -- JUSTICE SOTOMAYOR: Do we just accept at face value something that might -- might not be true? 9 MR. KELLER: 10 But we have -- JUSTICE SOTOMAYOR: Can we give you standing 11 just on the basis of you saying, I'm going to do this 12 when it makes no sense? 13 MR. KELLER: We have a factfinding here. 14 They have not alleged it's clear error. 15 declarations in from Wisconsin and Indiana that have not 16 been challenged. 17 have to issue more driver's licenses, it's going to cost 18 more money. The bottom line is, if we're going to 19 CHIEF JUSTICE ROBERTS: 20 JUSTICE BREYER: 21 We also have Justice Breyer. I would like to ask a question. 22 The only thing I found here is about money, 23 really. 24 it's -- it's sort of hidden. 25 understand that. If there's something else that's worrying you, But money is money; I And my question is about standing. Alderson Reporting Company Official - Subject to Final Review 61 1 And this is technical, but it's important to me. 2 Looking at the briefs, awful lot of briefs, 3 senators, both sides. 4 both sides. 5 has tremendous political valence. 6 Awful lot of briefs from States, Members of Congress. Why? Because this Keep that in mind. Now, keeping that in mind, let's go back to 7 two old cases which are scarcely mentioned. 8 Supreme Court cases never die -- 9 But old (Laughter.) 10 JUSTICE BREYER: 11 overruled. 12 icebergs. -- unless, luckily, they're And a few have been. 13 (Laughter.) 14 JUSTICE BREYER: They're submerged like The one I'm thinking of is 15 Frothingham v. Mellon, Massachusetts v. Mellon. 16 there, in those cases, the Federal government had given 17 something to some people. 18 Other people wanted to sue because they said that means 19 we're going to have to pay more money. 20 said, you other people from Massachusetts, I'm sorry 21 Massachusetts lost, but lo and behold, it did. And There were beneficiaries. And the Court 22 That's just because I'm from Massachusetts. 23 (Laughter.) 24 JUSTICE BREYER: 25 But the point is they lost, because, says the Court, we can't let you just sue on Alderson Reporting Company Official - Subject to Final Review 62 1 the basis that you, as a taxpayer, will have to spend 2 more money. 3 country will be suing in all kinds of cases, many of 4 which will involve nothing more than political 5 disagreements of all kinds. 6 power will be transferred from the President and the 7 Congress, where power belongs, to a group of unelected 8 judges. 9 Because if we do, taxpayers all over the And before you know it, And for that reason, we say you individuals 10 who will have to pay more money will; cannot just sue on 11 that basis. 12 you parens patriae because this is between the Federal 13 government and the citizens. 14 to pay. 15 again, bringing up to a case that they won, that was 16 their own coastline. 17 physical territory belonging to Massachusetts. 18 course, they have standing to protect that. 19 And as for the State, it cannot represent They're the ones who have And as far as Massachusetts is concerned, And that's not money. That's the And, of Now, I want your -- think for a second. I'm 20 finished. 21 know how you get around that, Frothingham, Massachusetts 22 v. Mellon, that when you give a benefit here, hurt the 23 taxpayer via money over there, he doesn't have the kind 24 of interest that gives him standing. 25 You see -- you see my point. MR. KELLER: And I want to First, we're raising financial Alderson Reporting Company Official - Subject to Final Review 63 1 harms from our own State's fisc. 2 patriae. 3 that's Massachusetts v. EPA. 4 Federal government the authority to determine who's 5 lawfully present within the borders of the 26 States. 6 Now -- 7 That's not a parens And we're also raising sovereign harms, and JUSTICE BREYER: We have ceded to the Well, sovereign harms, you 8 realize, would follow a fortiori, because if a State 9 cannot sue and its citizens cannot sue to stop the Feds 10 from giving somebody a benefit on the ground that it 11 will cost the State or the individuals more money, 12 surely they cannot sue just by announcing it requires a 13 change in law in general, or because it requires -- 14 hurts our sovereign interest, for then every case of 15 political disagreement where States disagree would come 16 before the Court. 17 MR. KELLER: Well, but I think a lot of 18 those cases would be taken care of through causation 19 requirements, injury-in-fact requirements, and the zone 20 of interest test, for instance, the adjusted gross 21 income example and the veterans benefits example that 22 the other side has brought up. 23 cases would be screened out through the zone-of-interest 24 test. 25 I think that all those Here, we put forward over a thousand pages Alderson Reporting Company Official - Subject to Final Review 64 1 of evidence into the preliminary injunction record with 2 over a dozen declarations and have factfindings 3 establishing exactly what Arizona v. United States said, 4 which is that the States bear the consequences of 5 illegal immigration. 6 And when we can come to court and show a 7 concrete injury and a policy that is causing that 8 injury, and by enjoying that policy, we wouldn't have to 9 incur either the financial harm or the sovereign harm, 10 that's precisely when -- 11 JUSTICE SOTOMAYOR: 12 MR. KELLER: 13 Well, but that -- -- you have Article III cases -- 14 JUSTICE SOTOMAYOR: -- that really pits the 15 States against every Federal agency. 16 financial harm that indirectly flows from a change in 17 policy would be subject to attack. 18 And any harm, Let me give you a prime example. Okay? 19 Imagine Texas passed a law forbidding its State pension 20 plan from investing in any financial company whatsoever 21 that the Federal Stability Oversight Council declares 22 systematically important. 23 Too big to fail. Texas reasonably doesn't want to invest 24 money in companies that if they fail are going to tank 25 the economy. Now, let's say the Federal government sets Alderson Reporting Company Official - Subject to Final Review 65 1 out a policy memorandum that says, in our discretion, we 2 are not going to declare some insurance firms under a 3 certain size as too big to fail. 4 should. We just don't think we Okay? 5 Why can't the States sue that Federal agency 6 and say the law mandates that you tell us who's too big 7 to fail? 8 9 MR. KELLER: I don't think States would be protected by laws governing which banks are too big to 10 fail, but States absolutely are protected by immigration 11 laws saying who is lawfully present within our borders. 12 And I think -- so that would be -- we did that under the 13 zone of interest test. 14 So even if -- JUSTICE SOTOMAYOR: We already said in 15 Arizona v. Whiting that you can't tell the Federal 16 government who to say is legally or not legally present 17 here. You don't have a right to set immigration policy. 18 MR. KELLER: 19 JUSTICE SOTOMAYOR: And that's precisely -You're not in the zone 20 of interest of this -- of this -- of the immigration 21 law. 22 MR. KELLER: Oh, we absolutely are, and 23 that's precisely why I a.m. standing here. 24 the Court recognized in Arizona, just because the 25 Federal government pervasively regulates immigration, Alderson Reporting Company Because as Official - Subject to Final Review 66 1 that doesn't mean that the States don't have a 2 significant interest in who's within their borders. 3 have an easily identifiable sovereign interest on who's 4 within our borders. 5 We However -- JUSTICE GINSBURG: But the State can't 6 remove anyone, and we still go back to the basic 7 problem: 8 appropriating money to -- to remove more than -- what is 9 it? -- four million of them. 10 11.3 million people. Congress is not So there are these people that are -- who 11 are here to stay no matter what. 12 that the Federal government can say, low priority, 13 here's your card. 14 change our mind. 15 And you have conceded Not going to deport you unless we So the only thing that's involved is the 16 work, and you haven't challenged that separately. 17 You're challenging DAPA. 18 MR. KELLER: And -- and DAPA itself purports 19 to grant not only work authorization, but also transform 20 lawful conduct into lawful conduct. 21 JUSTICE GINSBURG: 22 through that. 23 tolerated presence. 24 that word. 25 mean is tolerated presence. We've already gone We've -- we have agreed that that means The government has said, take out It was unfortunate that we used it. Alderson Reporting Company What we Official - Subject to Final Review 67 1 MR. KELLER: But it's not just an 2 unfortunate slip. 3 status, under their regulations, that is lawful 4 presence. 5 presence" from the DAPA memo and pretend "lawful 6 presence" isn't in there. 7 regulations -- 8 9 When they're granting deferred-action So they want you to take out "lawful But then when you go into the JUSTICE KAGAN: But then why aren't you challenging the regulations? I mean, I understand what 10 you're saying that DAPA in some sense triggers the 11 regulations, but only because the regulations say what 12 they say, that your real challenge is not to DAPA, which 13 is the nonenforcement part of this. 14 is to the regulations, the fact that nonenforcement 15 leads to a certain set of results and yet you're not 16 here challenging those regulations. 17 MR. KELLER: Your real challenge Well, insofar as you'd conceive 18 of our case of challenging those regulations, it would 19 be challenging them as applied to DAPA, but when 20 Congress -- 21 JUSTICE SOTOMAYOR: The problem is that you 22 haven't exhausted administratively, and we always 23 require you to do that. 24 understand it, under the APA, for your failure to 25 exhaust your avenues in the agency first. There isn't an exception, as I Alderson Reporting Company Official - Subject to Final Review 68 1 2 MR. KELLER: challenging DAPA. Well -- but this is -- we are We are challenging that memo. 3 JUSTICE KAGAN: 4 MR. KELLER: Can I -- please. Go ahead. And when we bring forth that 5 suit, which only occurred as of November 20, 2014, just 6 because we're challenging DAPA's granting of deferred 7 action doesn't mean in the four narrow categories that 8 Congress has passed statutes allowing deferred action -- 9 for VAWA self-petitioners, T- and U-visa applicants, and 10 widows and widowers -- that somehow we'd have to also be 11 challenging -- 12 JUSTICE KAGAN: Do you think this? Suppose 13 that instead of doing DAPA, DHS had decided to go one by 14 one by one and it just -- you know, it sent a notice to 15 each person. 16 DHS could also say, and this will include work 17 authorization because of our preexisting regulations? 18 Do you think at that point that -- that MR. KELLER: Insofar as they were granting 19 lawful presence, no. 20 most look, you'd look at, well, has there been 21 congressional acquiescence to this minimal program -- 22 Work authorization, I think at JUSTICE KAGAN: I guess -- I'm not sure I 23 understood the first part of that because let's just, 24 like, take out the labels. 25 person, you're low priority. Just -- it notifies a single We're not going to deport Alderson Reporting Company Official - Subject to Final Review 69 1 you unless we change our minds. 2 preexisting regulations, you now can work on the books. 3 Is that legal? 4 And by virtue of Could -- could DHS do that? MR. KELLER: I don't think there's statutory 5 authorization. 6 acquiescence to a practice in a -- very small cases 7 that's bridging lawful -- 8 9 There may have been congressional JUSTICE KAGAN: See, that's interesting because I thought -- and as you said, there's not 10 statutory authorization with respect to that, and I 11 thought your entire argument is that they can't do this, 12 except for statutory authorization. 13 saying, well, in some cases they can do it. 14 MR. KELLER: And now you're Well, Justice Kagan, we have 15 multiple arguments. 16 And our backup argument, which is a response to the 17 Executive's congressional acquiescence argument, is that 18 at most, Congress would have acquiesced to a practice of 19 very small uses that were bridged -- 20 The first is a statutory argument. JUSTICE KAGAN: And how about this? How 21 about DHS doesn't do it one by one. How about DHS says, 22 it's senseless to do it one by one. We should use some 23 categories. 24 25 years. 25 stay unless we change our minds. Here's the category. You've been here for You're entitled to -- not entitled. Alderson Reporting Company You can Official - Subject to Final Review 70 1 So that's the category. So it's a smaller 2 category, but, you know, there's some -- there's a lot 3 of people in that. 4 MR. KELLER: If there was no previous lawful 5 status or an eminent lawful status, there's no way 6 Congress has acquiesced to that. 7 And if I can back up -- 8 JUSTICE KAGAN: 9 that's important. So wait a minute. So -- so So -- so DHS could not say to all the 10 people who have been here for 25 years and perfectly law 11 abiding, Congress could not say to those, you know, tens 12 of thousands of people, let's say, not millions, tens of 13 thousands, all right, you -- we won't deport you unless 14 we change our minds, and you can work, you can feed your 15 families, you can do that. 16 that? 17 MR. KELLER: Congress -- DHS could not do Congress could. DHS does not 18 have statutory authority right now, of carte blanche 19 authority to grant lawful -- 20 JUSTICE KAGAN: So this has nothing to do 21 with the scope of this policy. 22 with, oh, how many millions of people are in this 23 policy. 24 smaller policy of the kind that DHS or its predecessor 25 agencies have done literally every year for the last This has nothing to do You're saying even with respect to a much Alderson Reporting Company Official - Subject to Final Review 71 1 three decades, that all of that was ultra vires. 2 3 4 5 6 MR. KELLER: Mr. Chief Justice, my time is up. CHIEF JUSTICE ROBERTS: Please, you may answer the question. MR. KELLER: When we're talking about the 7 scope of the program as opposed to bridging lawful 8 status, the scope goes to, is this a question of deep 9 economic significance? It also goes to when the 1987 10 work authorization was justified, the Executive was 11 telling everyone through the administrative process that 12 this was for a minuscule number of people, and it 13 wouldn't affect the labor market. 14 And this also brings to light that here, the 15 Executive didn't even use notice-and-comment in 16 promulgating this sweeping -- their theory is that they 17 can grant deferred action where there's not going to be 18 lawful status, that no court can review it, and they 19 didn't even use notice-and-comment procedure. 20 That is unprecedented, is a sweeping 21 assertion as Justice Jackson said in Youngstown. 22 the duty of the Court to be last, not first to give up 23 the separation of powers." 24 CHIEF JUSTICE ROBERTS: 25 MR. KELLER: "It is Thank you, General. Thank you, Mr. Chief Justice. Alderson Reporting Company Official - Subject to Final Review 72 1 CHIEF JUSTICE ROBERTS: Ms. Murphy. 2 ORAL ARGUMENT OF ERIN E. MURPHY 3 FOR UNITED STATES HOUSE OF REPRESENTATIVES, 4 AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS 5 6 MS. MURPHY: Mr. Chief Justice, and may it please the Court: 7 Three years ago the Executive asked Congress 8 to enact legislation that would have given it the power 9 to authorize most of the people that are living in this 10 country unlawfully to stay, work, and receive benefits, 11 and Congress declined. 12 Now the Executive comes before this Court 13 with the extraordinary claim that it has had the power 14 to achieve the same -- 15 JUSTICE SOTOMAYOR: Excuse me. Was that 16 really all -- was that part of a package for a pathway 17 to citizenship? 18 MS. MURPHY: It was not a pathway to 19 citizenship. 20 country that would have allowed individuals to have a 21 legal status, to remain in this country, and Congress 22 has not created a legal status for the category of 23 individuals covered by DAPA. 24 25 It was a pathway to lawful presence in the JUSTICE SOTOMAYOR: That's correct. Why do you think this is a legal status in the way that that Alderson Reporting Company Official - Subject to Final Review 73 1 2 bill imagines? MS. MURPHY: It is a legal status because 3 under the agency's own regulations, it is a status that 4 has consequences. And I would point you in particular 5 to 8 C.F.R. 1.3. This is the statute that defines the 6 term "lawfully present." 7 in deferred-action status, you are lawfully present and 8 eligible for benefits. 9 Under that statute, if you are Now that statute goes on to say if you are 10 just an individual as to whom DHS has declined to pursue 11 removal proceedings, you are not lawfully present. 12 whether you are in deferred-action status makes a 13 difference under the agency's own regulations. 14 that affirmative act of not just forbearing and making 15 the decision not to remove somebody, but putting them 16 into deferred-action status that triggers the 17 availability of work authorization and eligibility to 18 receive benefits. 19 CHIEF JUSTICE ROBERTS: So It's So why don't we just 20 cross -- why don't we just cross out "lawfully present," 21 as the SG has suggested? 22 MS. MURPHY: You can't cross it out and 23 achieve what DAPA is supposed to achieve, because what 24 really matters in DAPA is that it is allowing the grant 25 of deferred-action status. Alderson Reporting Company Official - Subject to Final Review 74 1 Whatever the Executive wants to label that, 2 under its own regulations, deferred-action status is 3 equated with lawful presence. 4 the DAPA memo, it's still part of the regulatory scheme 5 that says once we've taken this extra step, not just of 6 deferring the removal of you, but of putting you into 7 this status, that changes your eligibility for work 8 authorization and benefits in this country. 9 the Executive is doing that, we are far outside the 10 11 So if you cross it out of And once notion of mere enforcement discretion. JUSTICE GINSBURG: But you would agree with 12 the clause that says low priority, that -- that -- 13 nothing about work authorization, nothing about Social 14 Security, if you are low priority, which means we'll 15 probably never get to you because Congress hasn't given 16 us the money to remove you. 17 MS. MURPHY: Well, we would not necessarily 18 concede that you could actually grant people cards that 19 say we're not going to enforce the law as to you. 20 that's all not at issue in this case, because what the 21 Executive wants to do is something much more than that. 22 But If all they wanted to do was say we're not 23 going to enforce as to you, the only memo they would 24 have issued is the Enforcement Priorities Memo, because 25 in order to qualify for DAPA, you have to already not be Alderson Reporting Company Official - Subject to Final Review 75 1 an enforcement priority under the Enforcement Priorities 2 Memorandum. 3 What the Executive wanted to accomplish was 4 something more: 5 enforcement priority, but we want you to be eligible to 6 work and to receive benefits. 7 that is by taking this affirmative act of converting you 8 into a status that, under our own regulation, changes 9 your eligibility -- 10 11 12 To say not only are you not an And the way that we do CHIEF JUSTICE ROBERTS: Well, we'll hear in a second -JUSTICE KENNEDY: Why wouldn't the 13 appropriate way for Texas to proceed have been to 14 challenge the regulation under the APA -- I think it's 15 Section 553 -- and then if there were concern about 16 notice-and-comment taking too long, asking for a 17 preliminary injunction? 18 MS. MURPHY: I -- I don't think that's the 19 way that it actually makes sense for this to proceed, 20 because there's nothing inherently problematic about a 21 regulation that ties deferred-action status to work 22 authorization. 23 Congress has passed multiple statutes -- 24 JUSTICE KENNEDY: 25 Well, but the point -- the point of the suit, I guess -- I'm not going to tell Alderson Reporting Company Official - Subject to Final Review 76 1 people how to design their suit -- the point of the suit 2 would be the -- the areas of discretion have been so 3 vastly changed that the regulation now -- now has 4 been -- has been superseded. 5 MS. MURPHY: And I don't mean to suggest 6 that that's not a way you could challenge. 7 think it's the way you have to challenge this, because 8 to me, the real problem is not the linking of 9 deferred-action status and work authorization, it's the But I don't 10 abuse of deferred-action status. 11 that includes the power to grant deferred action status 12 to individuals who are on -- on a class-based program -- 13 JUSTICE GINSBURG: That's not a power Then you disagree with 14 General Keller, because I think he did say -- came up a 15 few times, it's in his brief -- you could give an ID 16 card to these people saying low priority -- the whole 17 category of people, give them that. 18 them work authorization or Social Security. 19 MS. MURPHY: But you can't give What I would say is we would 20 have concerns if this case were challenging just the 21 Enforcement Priorities Memorandum, and we would have the 22 same concerns if you had that and invited people in and 23 gave them an enforcement priority card. 24 25 That's not what this case is challenging. So ultimately, whether the House has concerns about the Alderson Reporting Company Official - Subject to Final Review 77 1 Enforcement Priorities Memorandum is really beside the 2 point here, because what this case is challenging is the 3 DAPA memorandum that goes beyond the mere enforcement 4 discretion -- 5 6 JUSTICE SOTOMAYOR: it -- break it down? 7 MS. MURPHY: 8 JUSTICE SOTOMAYOR: 9 10 Are you arguing that the action of removal against this class of aliens? MS. MURPHY: It all depends by what you mean by "defer action." 13 14 Sure. Executive does not have the power to defer -- to defer 11 12 So can we -- can we take JUSTICE SOTOMAYOR: I just said deferred action, but they're not -- 15 MS. MURPHY: Well, I can't answer the 16 question unless I understand whether you're talking 17 about mere forbearance or putting them into 18 deferred-action status. 19 We don't believe the Executive has the power 20 to put this class of individuals into deferred-action 21 status. 22 authority to do so. 23 of their congressional acquiescence theory, the types of 24 deferred-action status programs that existed in the past 25 are fundamentally different, both in kind and in scope, First of all, there's plainly no statutory But even if you get into the world Alderson Reporting Company Official - Subject to Final Review 78 1 from this one. 2 Before 1997, you didn't even have 3 class-based deferred-action programs. 4 programs they're talking about pre-1997 are exercises of 5 different powers, powers pursuant to statutes that 6 existed at the time, such as the voluntary departure 7 statute that no longer is a path for Executive -- 8 9 JUSTICE BREYER: this, then? Can I -- can I ask you Because you're an amicus; you're not a 10 party. 11 their objections. 12 All of the It's Texas who's the party, and they've made But suppose we played -- suppose I picked up 13 your thought and also coupled it with what the SG said, 14 cross out the words that say "special status." 15 suppose that would it work to say, look, the question is 16 whether Texas has standing to complain about simply the 17 change in priorities for action. 18 that affects driver's licenses, or could, or could 19 affect benefits, or will. 20 do so, then they might have a case that they could bring 21 challenging that aspect of the situation. 22 And We don't know yet if But should the Administration All we're saying is that they do not have 23 that case now, given the SG's concession or agreement or 24 desire to strike those words out. 25 not, in your opinion? Alderson Reporting Company Does that work or Official - Subject to Final Review 79 1 2 MS. MURPHY: I'm sorry. 3 4 JUSTICE BREYER: If I a.m. not clear, I will not repeat it, but you can forget it. 5 MS. MURPHY: 6 responsive. 7 the question. 8 9 I'm not sure I completely -- No, no. I want to be I just want to be sure I understand the -- I mean, I think -- I -- I -- I guess my point is that I don't think anything, either in Texas's 10 view of the case, or in our view of the case, that turns 11 on these words "lawful presence" being in the DAPA 12 memorandum, because what matters is the DAPA memorandum, 13 as it says, is designed to make it a path for 14 individuals to be eligible for work authorization, and 15 without DAPA they're not. 16 And it's also a path to make them -- I mean, 17 once they are in deferred-action status, that is why 18 they are considered lawfully present. 19 considered lawfully present just because the Executive 20 is not actively pursuing removal proceedings against 21 you. 22 You're not Again, C.F.R. -- 8 C.F.R. 1.3, it 23 specifically says the decision not to pursue a removal 24 proceeding does not render you lawfully present. 25 matters. So it You know, the -- the words that were used Alderson Reporting Company Official - Subject to Final Review 80 1 here, and the program being created, matters. 2 enough to have mere forbearance. 3 additional step to achieve what the Executive wants to 4 accomplish. 5 JUSTICE SOTOMAYOR: It's not You need this So your position is that 6 in 1989, when George H. W. Bush granted deferred 7 enforced departure for Chinese residents after the 8 Tiananmen Square situation, that he acted illegally? 9 MS. MURPHY: No. Because that program was 10 justified on a different power than the power here. 11 was deferred -- that -- the deferred enforced departure 12 in Article II -- 13 14 JUSTICE SOTOMAYOR: But there was no statutory authority for him to do that. 15 MS. MURPHY: It is a power that the 16 Executive has always grounded in Article II foreign 17 affairs power. 18 power. 19 It A nationality, country-based concern Now, there's currently a statute on the 20 books, the temporary protected status statute, that says 21 it is the exclusive authority through which the -- the 22 Executive can grant nationality based, but -- 23 JUSTICE SOTOMAYOR: 24 MS. MURPHY: 25 statute didn't exist -- Right. That came after this. And at the time, that Alderson Reporting Company Official - Subject to Final Review 81 1 JUSTICE SOTOMAYOR: 2 no statutory authority. 3 MS. MURPHY: At the time, there was Whatever was happening before 4 1990 doesn't tell you very much about what Congress has 5 acquiesced in when Congress passed a statute in 1990 6 that said these are the circumstances under which you 7 can grant -- 8 9 JUSTICE SOTOMAYOR: I -- I appreciate that. And that may be what Congress does here. It may come 10 back and say deferred action is limited in this way. 11 But it hasn't yet. 12 So assuming that we have a history of 13 deferred action for categories of people, then what 14 you're really arguing about it -- and you -- and I 15 stopped, or you got interrupted when you were answering 16 me earlier -- why are you -- are you arguing that the 17 1986 regulation, which gives the Attorney General the 18 right to grant work authorizations to individuals who 19 have been provided deferred action, are you arguing 20 that's unconstitutional? 21 MS. MURPHY: No. Because there are statutes 22 on the books that say deferred action status also comes 23 with work authorization. 24 25 So, of course -- JUSTICE SOTOMAYOR: Except that the statute says that the -- those people, deferred action, can be Alderson Reporting Company Official - Subject to Final Review 82 1 granted under the statute -- 2 MS. MURPHY: 3 JUSTICE SOTOMAYOR: 4 Yes. General. 5 MS. MURPHY: 6 JUSTICE SOTOMAYOR: 7 I'm not -The ones if -- you're striking out by the Attorney General? 8 9 -- or by the Attorney MS. MURPHY: I was talking about different statutes, not 1324a(h)(3). I was talking about the 10 statutes that actually refer to deferred action. 11 they say that the Executive can grant deferred action 12 and work authorization. 13 problematic about a regulation that implements 14 Congress's precise understanding that in the 15 circumstances where the Executive is authorized to grant 16 deferred action -- 17 And So there's nothing inherently JUSTICE KAGAN: Ms. Murphy, suppose 18 something is not statutorily authorized. 19 this is a version of the hypothetical that I gave to 20 General Keller. 21 one by one. 22 said and you're entitled to work on the books. 23 could DHS do that? 24 25 Suppose -- Suppose DHS decided to do this one by And in doing it one by one by one, also MS. MURPHY: Could -- I think it would -- it would ultimately in that instance start to become a question Alderson Reporting Company Official - Subject to Final Review 83 1 of scope and a point at which you have a policy that is 2 inconsistent with the use of deferred action status. 3 Because in the past, I mean, there have been this kind 4 of ad hoc de minimis, case-by-case use of deferred 5 action status. 6 JUSTICE KAGAN: Okay. So suppose, then -- 7 again, same kind of question that I gave to 8 General Keller. 9 was of much less significance scope. Suppose that there was a policy, but it Let's say a policy 10 that said if you've been in the United States for 30 11 years and you have children here, we're not going to 12 deport you unless we decide otherwise, and you're 13 entitled to work on the books. 14 MS. MURPHY: No. Could DHS do that? There is not any 15 congressional authority that allows it, and there is no 16 past practice like it. 17 JUSTICE KAGAN: 18 significant, right? 19 mean -- No past practice like it? 20 MS. MURPHY: 21 JUSTICE KAGAN: 22 MS. MURPHY: 23 JUSTICE KAGAN: 24 MS. MURPHY: 25 But this is very I There's not any past practice. What was that family -- That was not a --- policy -- fairness? -- voluntary departure. There was a statute on the books at the time that permitted Alderson Reporting Company Official - Subject to Final Review 84 1 extended voluntary departure. 2 that. 3 for a category of individuals that had no path to loss 4 of status. You no longer can do There is no past deferred action program that was 5 JUSTICE KAGAN: So, but this is important. 6 Because you're -- you're basically saying that DHS, 7 going forward, any administration cannot have any kind 8 of policy, even if it's limited, much more limited than 9 this kind of policy is that allows undocumented aliens 10 11 to work. MS. MURPHY: Congress has passed a statute 12 that says if you are living in this country without 13 legal authority, you cannot work. 14 policy judgment in 1324a. 15 JUSTICE KAGAN: 16 MS. MURPHY: 17 JUSTICE KAGAN: That's Congress's That's -- You may disagree with -Yeah, yeah, yeah. 18 understand the point. 19 this would be an enormous change in practice. I All, I guess, I'm just saying is 20 MS. MURPHY: 21 the past practices, there are none. 22 pointed to a single deferred action program that granted 23 it to a class of individuals who had no lawful path to 24 status in this country. 25 Not at all, Your Honor, because JUSTICE GINSBURG: They have not Is that true of all other Alderson Reporting Company Official - Subject to Final Review 85 1 deferred actions mentioned in the Appendix, the one that 2 the Congressional Research Service did? 3 4 MS. MURPHY: deferred action programs. 5 6 Yes. Most of those are not They're extended voluntary -- JUSTICE GINSBURG: I mean, they are different. 7 MS. MURPHY: There's really -- there's only 8 about four deferred action programs that were 9 class-based. Those all were path to lawful status. 10 U visas, T visas, people who held F1 visas during 11 Hurricane Katrina. 12 CHIEF JUSTICE ROBERTS: 13 Five minutes, General Verrilli. Thank you, counsel. 14 REBUTTAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR. 15 ON BEHALF OF THE PETITIONERS 16 17 18 GENERAL VERRILLI: Thank you, Mr. Chief Justice. First, on standing, I would note that they 19 have no answer to our redressability point. 20 hear one today. 21 You didn't They don't have one. Second, even if you think they got over the 22 Article III hurdle, there's just no way that this 23 license cost injury constitutes something within the 24 zone of interest in any provision within the APA, and 25 they haven't tried to establish that. Alderson Reporting Company Official - Subject to Final Review 86 1 And then third with respect to standing, I 2 think Justice Breyer's point about the analogy between 3 the kind of theory that they are advocating here and 4 taxpayer standing and parens patriae is dead on correct. 5 This would invite exactly the same kind of flood of 6 litigation that you have always said Article III is 7 designed to prevent, and if you want proof of that, it 8 already exists. 9 sue the United States based on the resettlement of Texas is already using this theory to 10 Syrian refugees in Texas, and that will just be the 11 beginning. 12 Now, Justice Alito, you raised a couple of 13 points I want to get to with some specifics. 14 about whether an employee with a deferred action work 15 authorization could sue if an employer refused to hire. 16 I would direct Your Honor to 8 U.S.C. 1324b. 17 Congress has determined the situations in which an 18 employee -- well, with -- an alien with work 19 authorization has a discrimination claim and when the 20 employee doesn't. 21 public resident, you do. 22 where you don't. 23 24 25 You asked Actually, That statute says if you're a lawful JUSTICE ALITO: Deferred action is on the side Well, I was asking about Section 1981. GENERAL VERRILLI: Well, but I think that if Alderson Reporting Company Official - Subject to Final Review 87 1 you have a -- you'd have a hard time making that claim 2 given that Congress has made that kind of a judgment. 3 4 Now, with respect to another point Your Honor made -- 5 6 JUSTICE ALITO: So your position is that -- that there could not be a suit under 1981. 7 GENERAL VERRILLI: What I'm saying is that 8 Congress made a judgment there that -- that bears very 9 directly on it. 10 But now, with respect to another point that 11 Your Honor raised about specific statutory references to 12 lawful presence, my friends on the other side made a 13 huge deal about this, in particular 8 C.F.R. 1.3, which 14 I think they cite seven or eight times. 15 I urge you to go to look at it. I urge you 16 to, in fact, read the rulemaking order that went along 17 with it from -- from 1996. 18 what it says, that it applies to one thing and one thing 19 only. 20 under Section 1611(b). 21 we quoted this in our reply brief -- specifically says 22 that although we're counting deferred action as lawful 23 presence for the purpose of accruing Social Security 24 benefits for the reason that if you can work lawfully, 25 you ought to be able to accrue benefits. What you'll -- you'll see That's the accrual of Social Security benefits And the rulemaking order -- and Alderson Reporting Company This does not Official - Subject to Final Review 88 1 confer any lawful status under the immigration laws. 2 specifically says that. 3 And so we can argue about whether the 4 Executive has the authority to consider people with 5 deferred action as lawfully present in that narrow 6 sense. 7 that is the tail on the dog here. We think we're right. 8 JUSTICE ALITO: Maybe they're right, but That's not -- Well, if you -- if the 9 phrase "lawful presence" were stricken from the 10 Guidance, would you take the position that DAPA 11 beneficiaries are not lawfully present for purposes of 12 -- under certain statutes that use that phrase for the 13 re-entry bar, for eligibility for Federal benefits? 14 15 GENERAL VERRILLI: It's -- the only Federal benefit is Social Security. 16 17 It JUSTICE ALITO: Well, would you say they were lawfully present for those two statutory purposes? 18 GENERAL VERRILLI: No. There are 19 regulations that say that they are, but we -- and we can 20 fight about that. 21 said, that is the tail on the dog. 22 But that doesn't -- but that -- as I Now, if I could go to the merits. 23 Repeatedly, you've heard that the Family Fairness policy 24 was pursuant to statutory authorization. 25 flat wrong. That's just There's a D.C. Circuit case, and you can Alderson Reporting Company Official - Subject to Final Review 89 1 read Judge Silverman's opinion in that case that we cite 2 at page 49 in our brief which specifically describes it 3 as extra-statutory, which is what it was. 4 Now, the other key point, and I think this 5 is really important. 6 who can get work authorization is that either Congress 7 has to specifically say you get work authorization, or 8 Congress has to specifically authorize the Attorney 9 General, now DHS, to get -- to grant -- to decide Their theory about the scope of 10 whether people in this particular category can get work 11 authorization. 12 Forget about deferred action. There are 13 millions of people who get work authorization under 14 existing law now who -- who couldn't get it if -- if 15 that were the proper interpretation of the law. 16 millions of people are in proceedings for adjustments of 17 status. 18 proceedings for cancellation of removal. 19 of those of people that have parole. 20 people qualify under reading of the statute. These The hundreds of thousands of people who are in 21 The hundreds None of those That is why in 1987, when -- when INS had a 22 rulemaking proceeding about this, they rejected it. 23 would completely and totally upend the administration of 24 the immigration laws, and, frankly, it's a reckless 25 suggestion. And it just -- and -- and they Alderson Reporting Company It Official - Subject to Final Review 90 1 just never -- 2 3 JUSTICE SOTOMAYOR: People who have asylum don't have a pathway to citizenship. 4 GENERAL VERRILLI: Exactly. And there are 5 all kinds of statuses that don't qualify as lawful 6 status that people have always been allowed to get work 7 authorization during the period in which -- time where 8 their presence is tolerated. 9 10 CHIEF JUSTICE ROBERTS: people are we talking about with those? 11 12 13 14 15 How -- how many GENERAL VERRILLI: Millions. Millions. There are -CHIEF JUSTICE ROBERTS: The asylum applications? GENERAL VERRILLI: No, but the adjustment of 16 status, 4.5 million since 2008, and cancellation 17 removal, 325,000 since 2008. Huge numbers. 18 Thank you. 19 CHIEF JUSTICE ROBERTS: 20 The case is submitted. 21 (Whereupon, at 11:36 a.m., the case in the 22 Thank you, General. above-entitled matter was submitted.) 23 24 25 Alderson Reporting Company Official - Subject to Final Review 91 A a.m 1:14 3:2 65:23 79:3 90:21 Abbot 39:8 abdicating 53:19 abiding 70:11 ability 34:6 47:10 able 10:24 18:22 26:20 46:13 58:18 87:25 above-entitled 1:12 90:22 absolutely 31:14 32:3 44:22 65:10,22 abuse 76:10 accept 29:3 60:7 accomplish 75:3 80:4 account 40:9 accrual 87:19 accrue 4:22 19:16 87:25 accruing 87:23 achieve 5:1,2 7:22 72:14 73:23,23 80:3 acknowledge 47:3 acknowledged 48:17 acquiesced 48:5 48:24 49:3 69:18 70:6 81:5 acquiescence 68:21 69:6,17 77:23 acquisition 36:8 act 18:13 24:12 41:1 45:11 46:14 48:12 58:17 73:14 75:7 acted 34:25 80:8 acting 14:4 action 4:8,8 5:5 5:6 7:1 8:12,16 9:14 10:20 12:11 13:19 14:2,19,24 18:16 20:4,9 20:25 21:14,21 22:8 23:5,7,24 27:1 32:14,14 36:4,23 37:2 37:19 41:24,25 44:4 45:12,18 45:24 48:7,21 48:23 49:13,24 52:2,6,11 53:2 55:20 56:2,7 68:7,8 71:17 76:11 77:10,12 77:14 78:17 81:10,13,19,22 81:25 82:10,11 82:16 83:2,5 84:2,22 85:4,8 86:14,21 87:22 88:5 89:12 actions 15:11,12 33:14 85:1 actively 79:20 ad 83:4 add 59:4 addition 18:24 18:24 40:24 additional 16:25 40:6 80:3 adhering 51:1 adjusted 63:20 adjustment 7:3 29:8 90:15 adjustments 89:16 administration 39:14 41:5 78:19 84:7 89:23 administrative 20:5,6,8,12 71:11 administrativ... 67:22 admit 50:18 admitted 24:16 adopted 36:11 39:13 advanced 54:24 advancing 9:7 advisory 10:4 11:5 advocating 86:3 affairs 80:17 affect 71:13 78:19 affidavit 59:1 affirmative 23:2 73:14 75:7 affirmatively 52:3 agencies 70:25 agency 64:15 65:5 67:25 agency's 73:3,13 aggrieved 37:16 ago 43:18 72:7 agree 10:24 17:8 19:12 20:20 39:13 74:11 agreed 66:22 agreement 78:23 agrees 19:10 20:10 ahead 31:1 57:6 68:3 air 18:13,15 41:1 airport 58:19 al 1:3,6 3:5 alien 8:13 19:11 19:24 54:21 58:21 86:18 alien's 56:3 aliens 3:12,18,18 3:20 10:19 14:5 21:20,20 21:25 22:14 25:2 27:1 46:18 47:16,18 49:14 57:25 77:10 84:9 Alito 7:17,21,25 8:1 11:7,17,24 23:8,17 28:8 28:12,20,24 29:17 41:6,19 42:2,21 43:3 43:17 44:11,15 54:13,16 86:12 86:23 87:5 88:8,16 allegations 58:24 allege 5:15 alleged 5:8 44:23 60:14 allot 46:22 allow 26:16,17 allowed 18:21 72:20 90:6 allowing 14:11 54:23 68:8 73:24 allows 54:21 83:15 84:9 alternative 47:2 amicus 1:24 2:15 72:4 78:9 amount 27:11 46:23 analogous 16:8 analogy 86:2 ancillary 4:22 5:3 19:16 Angeles 1:19 announced 7:7 33:9,21,22,22 announcing 63:12 annual 36:8 answer 6:14 Alderson Reporting Company 11:19,19 13:17 13:23 16:22 17:9,11 25:17 40:4 46:21 71:5 77:15 85:19 answered 42:12 answering 81:15 anybody 17:25 23:13,18 anybody's 27:21 anymore 17:20 APA 32:14,14 41:2 67:24 75:14 85:24 App 55:19 apparently 54:24 appear 54:17 APPEARAN... 1:15 appears 54:18 54:19,20 Appendix 31:5 85:1 applicants 7:3 59:13 68:9 applications 49:5 90:14 applied 29:13 48:8,9 67:19 applies 10:25 87:18 apply 31:9 35:17 36:2 applying 29:8 43:12 appreciate 81:8 appropriate 75:13 appropriating 66:8 approved 20:16 approves 24:17 April 1:10 arbitrary 35:21 areas 76:2 Official - Subject to Final Review 92 argue 88:3 arguing 77:8 81:14,16,19 argument 1:13 2:2,5,9,12,16 3:3,7 4:16,18 9:9,11,12,24 11:12 14:23 15:22 16:14 19:20,22 29:23 30:8,9 31:3 35:11 45:3 69:11,15,16,17 72:2 85:14 arguments 69:15 Arizona 43:18 43:21 44:6 64:3 65:15,24 armed 15:25 arrival 7:2 23:7 arrived 22:6 Article 12:9 18:22 33:19 37:13,24 49:10 57:12 64:12 80:12,16 85:22 86:6 asked 11:18 17:7 32:13 34:18 50:12 72:7 86:13 asking 11:4 21:11 75:16 86:23 aspect 78:21 asserted 36:4 assertion 45:7 71:21 assume 11:9 14:15 43:23 58:25 assuming 81:12 asylum 22:14,23 90:2,13 attached 50:14 50:16 attack 64:17 attacking 31:11 55:4,4,7 attempts 43:22 Attorney 47:10 47:20 81:17 82:3,7 89:8 Austin 1:22 authoritative 9:2 authority 4:12 9:22 19:10,15 21:2 25:15 29:20,22,24 30:11 34:19,20 39:16 45:23 46:13 48:16 63:4 70:18,19 77:22 80:14,21 81:2 83:15 84:13 88:4 authorization 5:3 20:24 25:10 29:7,23 29:25 30:9,12 30:19 31:7 38:16 41:23 42:1,2,6,8 43:5 43:9,10,12,14 44:17,18,21,22 45:13 47:1,10 47:21 49:19 50:2,14,20 52:17 53:24 55:5,15,19 56:10,18 58:2 66:19 68:17,19 69:5,10,12 71:10 73:17 74:8,13 75:22 76:9,18 79:14 81:23 82:12 86:15,19 88:24 89:6,7,11,13 90:7 authorizations 51:3 81:18 authorize 4:21 19:16 48:18 72:9 89:8 authorized 38:12 41:9 42:9 43:20 44:3,5 55:12 56:5,14,20 57:1 82:15,18 availability 73:17 available 6:7 avenues 67:25 avoid 5:14 13:18 19:1 58:9 avoided 5:17 avoiding 3:21 awful 61:2,3 B B 1:16 2:3,17 3:7 52:7 85:14 back 20:24 42:7 43:9 44:4 49:17 58:8,11 61:6 66:6 70:7 81:10 background 56:25 57:14 backup 69:16 backwards 24:18 46:12 balance 35:7 balanced 40:16 balancing 36:6 ban 47:17 banks 65:9 bar 54:19 88:13 barriers 47:6 barring 5:2 based 7:1 17:16 19:17 36:4 50:11 80:22 86:9 bases 43:7 basic 66:6 basically 26:4 44:19 45:12 59:2 84:6 basis 8:12 9:24 10:22 14:11 49:23 60:11 62:1,11 bear 64:4 bears 87:8 began 4:15 beginning 86:11 behalf 1:17,19 1:22 2:4,7,11 2:18 3:8 35:12 45:4 85:15 behold 61:21 believe 39:12 40:6 43:3,23 43:25 45:25 50:10 77:19 believes 41:8 belonging 62:17 belongs 62:7 beneficiaries 7:19 11:11 28:9 43:21 61:17 88:11 beneficiary 41:8 benefit 62:22 63:10 88:15 benefits 4:22 5:3 10:19 19:17 25:9,11,12 32:9 47:1,2,6 49:20 50:16 52:4 53:2,24 63:21 72:10 73:8,18 74:8 75:6 78:19 87:19,24,25 88:13 best 45:15 beyond 7:2 8:19 52:14 77:3 big 24:7 64:22 65:3,6,9 bill 73:1 binds 20:15 Alderson Reporting Company blanche 70:18 blessing 44:8 blocked 36:1 bone 4:19 books 30:22 69:2 80:20 81:22 82:22 83:13,25 border 21:20 22:1,7,22 borders 23:11 63:5 65:11 66:2,4 bottom 60:16 branch 20:12,15 20:16 break 77:6 breakup 3:22 Breyer 15:22 17:6 33:10,14 33:16 38:21 39:7,10,17,23 40:1,4 60:19 60:20 61:10,14 61:24 63:7 78:8 79:3 Breyer's 86:2 bridged 69:19 bridging 49:13 69:7 71:7 brief 6:13 26:23 50:23 56:1 76:15 87:21 89:2 briefs 4:1 24:15 38:23 61:2,2,3 bring 33:14 68:4 78:20 bringing 62:15 brings 71:14 broadened 33:23 broader 14:7 brought 32:14 63:22 budget 60:2 budgetary 36:5 Official - Subject to Final Review 93 built 20:5 built-in 59:2 bureau 59:21 Bush 80:6 buy 13:17 Byrd 15:15 C C 2:1 3:1 C.F.R 73:5 79:22,22 87:13 Cal 1:19 cancellation 29:14 89:18 90:16 candor 36:14 42:25 capping 48:16 card 4:13 51:5 66:13 76:16,23 cards 4:3 50:24 50:25 54:25 74:18 care 63:18 carefully 58:25 carte 70:18 case 3:4 12:21 12:22 14:3 15:20 18:8 21:14 27:12 37:21 39:15 40:11,12,20 41:14 42:20 43:17 44:1 50:10,17 54:22 62:15 63:14 67:18 74:20 76:20,24 77:2 78:20,23 79:10 79:10 88:25 89:1 90:20,21 case-by-case 49:23 50:5 83:4 cases 13:11 24:14 61:7,8 61:16 62:3 63:18,23 64:13 69:6,13 catch-22 9:16 57:10 categories 9:5 22:14,21 29:18 29:25 30:2 31:6,8 68:7 69:23 81:13 category 6:19 29:6,9 30:20 38:14 51:5 69:23 70:1,2 72:22 76:17 84:3 89:10 causation 63:18 cause 15:10 18:16 23:24 caused 27:11 32:7 causing 64:7 caveat 16:22 ceded 63:3 certain 16:11 24:16 52:14 65:3 67:15 88:12 certainly 36:23 42:6 43:6 challenge 4:23 23:13,19,24 35:4 36:15 37:7,8 41:4 67:12,13 75:14 76:6,7 challengeable 23:21 challenged 60:16 66:16 challenging 53:19 55:10 66:17 67:9,16 67:18,19 68:2 68:2,6,11 76:20,24 77:2 78:21 chance 11:19 Chaney 23:22 change 5:14 6:3 9:18 11:3 12:18 13:24 14:16 27:21 37:14,17,21 38:10,19 40:8 52:22 53:12 57:12 63:13 64:16 66:14 69:1,25 70:14 78:17 84:19 changed 27:17 38:1 76:3 changes 45:9 74:7 75:8 changing 12:18 21:12 charged 18:14 18:17 check 57:14 58:21 Chevron 30:23 Chief 3:3,9 4:14 5:13,22 6:1,5 8:20,25 9:8,12 10:3,11 11:17 13:2,9,13 14:2 18:3,7 19:4,18 19:22 20:2,11 20:14,20 21:9 21:23 22:2,10 22:20 23:9 25:7 26:22 27:7,23 28:2,5 30:1,5 33:8,21 34:10 35:9,14 36:10 40:10,17 44:25 45:5 57:3 60:19 71:2,4,24,25 72:1,5 73:19 75:10 85:12,16 90:9,13,19 childhood 7:2 23:7 children 3:23 4:2 23:6 35:17 83:11 Chinese 49:4 80:7 chose 38:10 Circuit 54:23 88:25 circumstance 16:6 26:16 36:21 37:6 circumstances 16:14 32:22 36:16 37:8 38:7 81:6 82:15 cite 54:22 87:14 89:1 citing 15:18 citizen 3:22 21:5 35:17 citizens 3:13 4:2 19:12 62:13 63:9 citizenship 55:1 72:17,19 90:3 civil 43:19,22 claim 5:9 18:1,2 39:4 40:21,22 72:13 86:19 87:1 claims 37:10,10 40:19 58:25 clarify 17:7 clash 37:12,23 41:16 class 3:12,20 7:8 19:11 48:6,9,9 50:6,7,10 77:10,20 84:23 class-based 76:12 78:3 85:9 classic 40:11,12 classifications 56:23 clause 74:12 Clean 18:13 Alderson Reporting Company 40:25 clear 33:15 42:18,19 43:1 49:21 60:2,14 79:3 clearly 41:15 47:11 closely-divided 18:8 coastline 62:16 combatting 47:15 come 12:16 15:19 41:4 44:4 57:13 63:15 64:6 81:9 comes 72:12 81:22 coming 52:21 58:8,11 commencing 32:18 committed 3:14 companies 64:24 company 64:20 compelled 12:11 complain 78:16 complaining 19:2 completely 28:19 79:1 89:23 comprehensive 47:15 concede 3:15 74:18 conceded 4:11 39:14 44:20 49:18 66:11 conceding 50:16 conceive 67:17 concern 3:21 75:15 80:17 concerned 62:14 concerns 21:3,7 Official - Subject to Final Review 94 37:22 38:4,5 43:14 76:20,22 76:25 concession 78:23 conclude 22:17 22:19 40:7 conclusion 23:5 34:25 35:1 concrete 5:8 15:20 37:11,23 41:16 64:7 conduct 55:12 55:12 66:20,20 confer 5:15 88:1 confusion 27:11 Congress 18:13 21:18 24:17,19 25:3 46:2,5,5,6 46:7,9,12,21 46:25 47:5,11 47:14 48:4,12 48:16,18,24 53:7 54:17 61:4 62:7 66:7 67:20 68:8 69:18 70:6,11 70:15,17 72:7 72:11,21 74:15 75:23 81:4,5,9 84:11 86:17 87:2,8 89:6,8 Congress's 82:14 84:13 congressional 68:21 69:5,17 77:23 83:15 85:2 connection 43:13 connections 55:7 consequence 51:17 53:10 55:24 consequences 31:3 64:4 73:4 consider 88:4 considerations 36:7 40:16 considered 30:17 79:18,19 consistent 21:22 consistently 34:21 constitutes 85:23 constraints 21:18 contain 3:22 contention 4:19 context 15:19 37:21 56:21 57:25 continued 56:3 56:4 continuously 3:14 contradicts 36:5 contrary 14:16 controversy 15:20 converting 75:7 correct 7:14 10:14 14:20,25 15:4,9 20:13 25:16 26:6,7 28:7,10 37:20 42:14 44:14 49:20 50:8 56:19 72:24 86:4 cost 13:11 60:17 63:11 85:23 costs 5:9 13:22 17:21 39:23 40:9 59:25 Council 64:21 counsel 34:18 85:12 counting 87:22 country 3:14,19 22:6 25:2 47:4 50:20 56:5,20 57:2 58:3 62:3 72:10,20,21 74:8 84:12,24 country-based 80:17 couple 21:16,16 49:17 86:12 coupled 78:13 course 12:11 14:15 15:1 36:17 38:17 51:15 55:24 62:18 81:23 court 1:1,13 3:10 10:4 12:16 15:14 17:24 18:8,12 18:19 22:17,18 32:4 33:11,17 33:17,18 35:15 37:12,24 43:18 45:6 49:23 52:11 61:8,19 61:25 63:16 64:6 65:24 71:18,22 72:6 72:12 Court's 44:7 cover 22:13 covered 26:24 47:25 72:23 created 53:7 72:22 80:1 credit 25:11 crimes 3:15 criminal 21:20 criminals 21:24 22:3,22 critical 18:20 cross 73:20,20 73:22 74:3 78:14 cumulative 36:9 cure 51:25 curiae 1:24 2:15 72:4 current 5:11 6:15,16 35:21 38:19 currently 38:11 80:19 33:17 deciding 15:19 decision 4:9,11 36:3,6,20 37:14 38:7,9 D 38:17,18 40:14 D 3:1 44:8 47:16 D.C 1:9,17,23 73:15 79:23 88:25 declarations DACA 33:22 60:15 64:2 34:4 54:24 declaratory daily 35:19 12:10,12,16,19 DAPA 4:5 5:25 declare 65:2 7:19 11:11 declares 64:21 15:7 28:8,16 declined 72:11 32:1 34:5,16 73:10 35:4 36:13 deep 46:14,17 37:1 41:7,19 71:8 43:21,23 44:11 deeper 14:7 44:15 45:7,8 defect 52:1 49:11,19 51:13 defend 14:24 55:4,8,10,14 15:11 34:1 55:14,17 66:17 defending 37:14 66:18 67:5,10 defends 15:12 67:12,19 68:2 defense 15:3 68:13 72:23 27:18 43:24 73:23,24 74:4 44:1 74:25 77:3 defer 3:12 19:11 79:11,12,15 21:14 77:9,9 88:10 77:12 DAPA's 68:6 deference 30:23 day 58:6,7 59:6 deferred 4:8,8 days 48:17 5:5,6 7:1 8:11 de 83:4 8:16 9:14 dead 86:4 10:19 14:19 deal 87:13 19:23 20:4,9 decades 20:24 20:25 21:21 29:10 71:1 22:7,24 23:5,7 decide 10:8,10 27:1 36:3,23 12:25 23:23 37:2,3,19 38:15 83:12 41:24,25 44:4 89:9 45:12,24 48:7 decided 3:12 48:21,23 49:9 17:19 33:3,19 49:12,24 52:2 35:2 46:5,6,7 52:6,11 53:2 68:13 82:20 55:20 56:6,11 decides 14:15 68:6,8 71:17 Alderson Reporting Company Official - Subject to Final Review 95 76:11 77:13 80:6,11,11 81:10,13,19,22 81:25 82:10,11 82:16 83:2,4 84:2,22 85:1,4 85:8 86:14,21 87:22 88:5 89:12 deferred-action 44:19,20 47:21 51:23 67:2 73:7,12,16,25 74:2 75:21 76:9,10 77:18 77:20,24 78:3 79:17 deferring 74:6 defines 73:5 defining 24:10 definitely 18:7 20:1 demonstrate 38:12 denied 37:16 deny 11:10 denying 43:7 Department 1:17 57:22 departure 20:18 45:23 48:15,19 49:9 78:6 80:7 80:11 83:24 84:1 depend 5:20 11:20 depending 11:1 12:4 depends 38:6 77:11 deport 25:22 46:23 51:20 52:22 66:13 68:25 70:13 83:12 deported 26:5 53:12 described 36:22 44:10 describes 6:16 89:2 design 76:1 designed 79:13 86:7 desire 78:24 desired 5:11 detained 21:20 21:25 22:7,22 35:20 deter 47:6 determination 8:15 40:8 41:24 44:19,20 47:8 determinations 59:16 determine 42:19 56:23 63:4 determined 86:17 determining 36:19 DHS 3:17 19:10 21:19 23:5 55:5,7 68:13 68:16 69:3,21 69:21 70:9,15 70:17,24 73:10 82:20,23 83:13 84:6 89:9 die 61:8 difference 4:4 13:25 19:3 73:13 differences 18:10,11 different 6:18 12:19 13:14 17:10,12 18:25 24:22,23 27:13 31:6 35:6 37:4 37:8,9 43:8 51:8 57:13 77:25 78:5 80:10 82:8 85:6 difficult 34:1 direct 14:2 86:16 directive 55:14 55:17 directly 14:4 87:9 disagree 7:24 8:1 19:14 63:15 76:13 84:16 disagreement 39:20 63:15 disagreements 62:5 discretion 21:14 24:9,11 25:15 49:24 51:7 65:1 74:10 76:2 77:4 discretionary 34:20 35:18 39:15 discriminated 9:23 discrimination 41:11 86:19 discriminatory 43:7 dispute 13:6 39:13 disputing 25:14 disruptive 29:3 DMV 59:5 DMVs 58:6 document 6:20 51:18 60:2 documentation 8:12 57:23 documents 32:2 dog 32:11,12 88:7,21 doing 18:17 23:15,16 24:10 51:8 52:2 53:13 68:13 74:9 82:21 dollars 57:11 domestic 41:4 DONALD 1:16 2:3,17 3:7 85:14 doubt 17:6 doubts 32:21 dozen 64:2 driver's 5:16,24 6:7,10,14,19 7:19 8:23 9:13 9:19 10:25 11:10 13:22,24 15:24 16:10 17:4 36:8,13 37:17 38:25 39:21 42:8 43:10 44:23 51:10 56:6,9 56:12,15,24 57:7 58:17 59:13 60:17 78:18 duty 71:22 64:9 79:9 89:6 election 46:9 eligibility 9:10 32:9 50:1 73:17 74:7 75:9 88:13 eligible 6:12,24 9:7 56:15,24 57:24 73:8 75:5 79:14 eminent 49:15 70:5 employed 43:20 44:12 employee 86:14 86:18,20 employer 41:6,7 41:8,17 43:19 43:21,23 44:12 44:12 86:15 employment 47:15,18 48:19 enact 12:6 47:17 72:8 enacted 54:17 encourage 36:7 endpoint 36:21 E enforce 17:19 E 1:23 2:1,13 23:23 47:3 3:1,1 72:2 74:19,23 earlier 81:16 enforced 49:9 earned 25:10 80:7,11 easily 66:3 enforcement economic 46:15 17:21 25:8 46:17,22 71:9 35:22 49:24 economy 26:21 50:8 51:7,20 46:19 64:25 74:10,24 75:1 effect 14:6,11 75:1,5 76:21 24:15 45:18 76:23 77:1,3 effects 17:17 engage 44:9 18:15 19:1 English 28:21 effort 39:4 enjoying 64:8 eight 87:14 enormous 84:19 either 14:22 entails 52:14 20:17 22:8 entire 50:7 58:6 26:19 29:20,21 69:11 44:2 57:10 entitled 32:15 Alderson Reporting Company Official - Subject to Final Review 96 32:21 69:24,24 82:22 83:13 EPA 18:5,14,16 18:17 40:18 63:3 equal 14:22 37:9 37:22 38:4 equated 74:3 ERIN 1:23 2:13 72:2 error 60:2,14 escape 13:4 ESQ 1:16,19,21 1:23 2:3,6,10 2:13,17 essentially 10:4 33:24 34:6 49:18 establish 7:16 85:25 established 41:2 41:15 43:1 establishing 64:3 estimate 45:16 estimating 59:1 et 1:3,6 3:5 event 59:17 everybody 12:7 20:10 21:15 37:5 59:7 evidence 64:1 exact 32:1 exactly 25:6 48:20 51:18 64:3 86:5 90:4 example 6:25 7:2 12:6 17:19 21:18 23:3 38:16 41:11 63:21,21 64:18 exception 67:23 excluded 22:22 exclusive 80:21 Excuse 72:15 executing 24:19 executive 20:12 20:15,16 21:11 24:12 45:8 46:13 47:7,24 48:17,22 49:22 49:25 50:24 51:24 52:2 55:23 71:10,15 72:7,12 74:1,9 74:21 75:3 77:9,19 78:7 79:19 80:3,16 80:22 82:11,15 88:4 Executive's 39:15 69:17 exercise 25:15 exercised 34:21 exercises 78:4 exhaust 67:25 exhausted 67:22 exist 21:18 41:1 80:25 existed 77:24 78:6 existing 6:17,24 13:16 89:14 exists 5:11 11:4 86:8 expanded 48:13 expected 5:10 expenses 40:6 expensive 39:1 experienced 58:5 express 8:6 expressly 46:15 extend 34:15 extended 84:1 85:4 extinguished 30:10 extra 38:25 45:24 49:12 74:5 extra-statutory 89:3 extraordinary 72:13 58:20 61:16 62:12 63:4 F 64:15,21,25 F1 85:10 65:5,15,25 face 40:6 60:8 66:12 88:13,14 fact 7:23 10:6 Feds 63:9 12:25 20:15 feed 70:14 25:15 32:4 Fifth 54:23 39:12 40:5 fight 88:20 42:24 43:11 financial 40:21 48:12 67:14 57:11 62:25 87:16 64:9,16,20 factfinding finding 18:20 59:25 60:13 fine 32:6 58:22 factfindings finished 62:20 64:2 firms 65:2 factor 25:1 first 3:4 4:16,25 fail 64:22,24 14:9 16:3,17 65:3,7,10 17:3,4 45:22 failed 16:19 46:13 51:23 fails 35:22 58:16 62:25 failure 67:24 67:25 68:23 fairly 20:17 69:15 71:22 48:11 77:21 85:18 fairness 45:11 fisc 63:1 45:21 46:3 fits 51:5 48:14 83:23 five 59:5 85:13 88:23 flat 88:25 familiar 38:22 flea 32:11 families 3:22 flip 18:1 35:20 70:15 flood 86:5 family 21:4,4 flout 47:8 45:21 46:3 flow 25:10 48:14 83:21 flows 64:16 88:23 focusing 39:18 far 41:15 42:18 44:21 52:12 62:14 folks 38:13 74:9 41:16 fast 59:22 follow 22:5 63:8 fear 35:19 footnote 23:22 Federal 6:8,20 forbearance 7:13 9:22 50:19 51:19 12:18 15:23,25 52:13 77:17 17:16,21,22,23 80:2 35:21 44:8 forbearing 47:17 56:22,25 49:22 50:8,11 57:1 58:3,17 50:13 52:7 Alderson Reporting Company 73:14 forbidding 64:19 forced 26:20 forces 15:25 foreign 21:2 80:16 forget 79:4 89:12 forgive 25:24 32:19 form 36:9 forth 68:4 fortiori 63:8 forward 36:2 40:3 41:4 47:5 56:2 63:25 84:7 found 60:22 four 24:4 25:4 25:22,23 48:10 48:25 66:9 68:7 85:8 fraction 3:17 frame 19:8 framework 47:15 frankly 89:24 frequently 35:21 friends 60:1 87:12 front 15:16 Frothingham 61:15 62:21 frustration 58:10 full 15:3 fully 3:16 fundamental 3:16 4:24 5:21 10:2 11:22 17:2 18:10,11 27:20 fundamentally 21:10 77:25 funds 25:3 further 34:9,22 Official - Subject to Final Review 97 future 12:3 21:13 41:5 G G 3:1 GEN 1:16 2:3,17 general 1:16,21 3:6,7,9 4:6,14 4:17 5:19 6:1 6:15 7:10,14 7:20,24 8:3,5,9 8:17,24 9:11 10:2,14,16,23 11:16,20 12:4 12:13 13:8,25 14:14,21 15:1 15:5,8,13 16:21 17:9 18:6 19:6,21 20:1,3,13,19 21:10,16,25 22:4,12 23:1 23:14,20 24:6 24:13,21,25 25:6,16,20,23 26:1,7,10 27:6 27:9 28:1,4,7 28:11,15,23 29:1,19 30:4,7 30:25 31:2,12 31:14,18,21,24 32:3,17,19 33:1,8,13,15 34:3,12 35:5,9 39:18 40:24 45:2 47:10,17 47:20 49:16,17 51:12,15 54:4 55:3 63:13 71:24 76:14 81:17 82:4,7 82:20 83:8 85:13,14,16 86:25 87:7 88:14,18 89:9 90:4,11,15,19 George 80:6 Ginsburg 3:25 4:7 5:4 24:25 35:3 42:11,15 50:22 55:13 56:9,17 66:5 66:21 74:11 76:13 84:25 85:5 give 4:13 6:10 6:14,18 7:18 8:11,15 9:3,4 9:13,19 10:18 12:7 13:21,23 14:18 15:24 16:10 17:4 21:21 22:7 25:17 29:2 30:8,11,11 34:7 38:24 39:5 47:20 50:24 51:4 56:21 57:6 60:10 62:22 64:18 71:22 76:15,17,17 given 4:2,3 10:22 18:15 29:8,15 50:17 61:16 72:8 74:15 78:23 87:2 gives 41:20 42:3 42:5 62:24 81:17 giving 12:8 30:18 39:20 63:10 go 13:17,24 17:23 24:15 25:21 29:1 31:1,4 42:7 57:6,19,21 61:6 66:6 67:6 68:3,13 87:15 88:22 goes 8:19 15:14 71:8,9 73:9 77:3 going 9:13 11:12 12:1,7 14:8,10 14:18 16:23,24 17:19 19:6 20:23 21:9 23:12,23 25:17 26:12,15,18,19 34:7,8 37:5 41:7 43:9 47:4 51:20 52:10 54:2 56:1 59:5 59:6,8,12,22 60:11,16,17 61:19 64:24 65:2 66:13 68:25 71:17 74:19,23 75:25 83:11 84:7 gotten 54:25 58:8 governing 65:9 government 3:25 6:9,20 7:6 7:13 8:13 9:24 13:15 14:3,12 17:16,21,23 50:4,6 51:4,6 52:19 56:22 57:1,3 58:20 61:16 62:13 63:4 64:25 65:16,25 66:12 66:23 Governor 39:8 grant 19:23 22:24 23:5 29:24 46:12 50:20 51:10,19 66:19 70:19 71:17 73:24 74:18 76:11 80:22 81:7,18 82:11,15 89:9 granted 8:11 22:23 45:12 80:6 82:1 84:22 granting 48:23 48:25 50:1 51:9 52:2,3,13 54:1 59:14 67:2 68:6,18 grants 37:18 53:2 greater 45:18 green 54:25 gripe 53:22,23 53:23 gross 63:20 ground 21:5 23:2 63:10 grounded 21:7 80:16 group 62:7 Guatemalans 49:4 guess 8:24 10:21 52:16 68:22 75:25 79:8 84:18 Guidance 4:5 26:24 36:1 88:10 gun 54:20 56:7,8 guns 54:22 Heckler 23:22 held 85:10 hidden 60:24 hire 41:7,17 86:15 hires 43:21 history 14:10 45:9 81:12 hoc 83:4 Homeland 3:11 homes 35:20 Hondurans 49:4 Honor 6:16 37:20 39:6,12 39:22 40:2,13 40:21 41:13,23 44:24 57:9 84:20 86:16 87:4,11 host 22:15 House 1:24 2:14 72:3 76:25 huge 87:13 90:17 humanitarian 3:21 21:3 49:8 hundred 26:4 hundreds 7:4 29:10 89:17,18 hurdle 85:22 H Hurricane 85:11 H 80:6 hurt 39:19,20 H.C.F.R 52:5 62:22 Haitians 49:4 hurts 63:14 half 6:11 hypothesize 6:2 happened 34:16 16:16 45:11 hypothesized happening 81:3 23:9 hard 27:3 87:1 hypothesizing harder 50:9 5:23 harm 57:11 64:9 hypothetical 64:9,15,16 10:15 12:22 harms 63:1,2,7 14:1 23:18 hear 3:3 75:10 53:8,10 82:19 85:20 I heard 88:23 hearing 32:24 icebergs 61:12 Alderson Reporting Company Official - Subject to Final Review 98 ID 58:17 76:15 ideal 58:9 identifiable 66:3 identification 4:13 50:25 identified 5:4 30:20 35:23 identify 50:7 identity 4:3 ignoring 33:25 II 49:11 80:12 80:16 III 12:9 18:22 33:19 37:13,24 57:12 64:12 85:22 86:6 IIRIRA 54:18 illegal 10:1 15:7 36:11 48:11 64:5 illegally 80:8 imagine 15:23 39:3 64:19 imagines 73:1 imagining 16:9 immigrant 14:19 45:14 immigrants 14:18 immigration 8:12 16:23,24 24:24 26:13 27:14,15,22 35:22 45:9 47:3,7 56:22 64:5 65:10,17 65:20,25 88:1 89:24 impact 46:22 48:2 implausible 30:21 implement 21:2 implements 82:13 importance 14:7 15:19 17:3 important 4:7 8:18 15:16,17 19:8 36:17 37:25 41:22 61:1 64:22 70:9 84:5 89:5 impose 22:15 43:22 imposed 43:19 INA 55:6 incidental 14:6 17:17 incidental/ind... 14:11 include 68:16 includes 76:11 including 10:19 40:16 income 25:11 63:21 inconsistent 30:21 83:2 increase 17:21 incur 13:11 57:10 59:25 64:9 Indiana 60:15 indicated 37:12 37:24 39:8 40:25 indication 36:18 38:20 indirect 14:5 17:17 18:4 36:4 indirectly 64:16 indispensable 18:19 individual 14:5 40:13 41:17 55:21 57:1 58:2 73:10 individuals 26:24 37:16,19 43:20 44:12 47:21 48:6 62:9 63:11 72:20,23 76:12 77:20 79:14 81:18 84:3,23 inevitably 25:4 inflicted 11:8 inherently 75:20 82:12 injunction 5:2 32:15,22 64:1 75:17 injured 9:17,18 injury 4:25 5:9 5:10,14,17 7:23 9:15 10:9 10:12 11:8 12:25 13:18,21 18:3,4 36:5 43:15 44:23 57:12 64:7,8 85:23 injury-in-fact 63:19 INS 30:16,18,20 89:21 insofar 67:17 68:18 instance 52:15 63:20 82:25 instantly 9:21 insurance 65:2 integrity 58:20 interest 37:12 37:23 40:22 41:16 62:24 63:14,20 65:13 65:20 66:2,3 85:24 interesting 69:8 interpretation 89:15 interrupted 81:15 Intervenor-Re... 1:20 2:7 35:12 intervenors 9:25 invalid 7:7 invest 64:23 investing 64:20 invite 86:5 invited 76:22 involve 62:4 involved 44:2 66:15 Island 16:2,3,7 issue 7:8 10:4 12:24 15:16,17 17:15 25:9 33:3,5,18 56:6 60:17 74:20 issued 74:24 issues 15:18 32:7 J JA 55:25 58:1 59:11 Jackson 71:21 Jane 35:16 36:1 Jersey 13:10 job 18:17 JR 1:16 2:3,17 3:7 85:14 Judge 89:1 judges 62:8 judgment 4:13 8:6 12:17,20 12:24 16:24 19:12 22:9 84:14 87:2,8 judgments 47:3 judiciary 10:7,9 jurisdictional 60:3,5 Justice 1:17 3:3 3:9,25 4:7,14 5:4,13,22 6:1,5 7:5,12,17,21 7:25 8:1,9,17 8:20,25 9:8,12 10:3,11,16,23 11:7,17,17,24 12:9,14 13:2,9 13:13 14:2,14 14:22 15:2,6,9 Alderson Reporting Company 15:22 17:6 18:3,7 19:4,18 19:22 20:2,11 20:14,21 21:9 21:23 22:2,10 22:20 23:8,9 23:17 24:4,7,8 24:14,25 25:7 25:18,20,25 26:3,8,22 27:7 27:23 28:2,5,8 28:12,20,24 29:17 30:1,5 30:25 31:10,13 31:16,20,23,24 31:25 32:13,18 32:20,23 33:8 33:10,14,16,21 34:10 35:3,9 35:14 36:10,25 37:18 38:2,21 39:7,10,17,23 40:1,4,10,17 41:6,19 42:2 42:11,15,21 43:3,17 44:11 44:15,25 45:5 45:10 46:4,11 46:16 47:9,19 48:8,20 49:2 49:16 50:3,12 50:22 51:12 52:16,24 53:4 53:8,15,21 54:3,9,13,16 55:2,9,13 56:9 56:17 57:3,16 58:4,22 59:18 60:3,7,10,19 60:19,20 61:10 61:14,24 63:7 64:11,14 65:14 65:19 66:5,21 67:8,21 68:3 68:12,22 69:8 69:14,20 70:8 70:20 71:2,4 Official - Subject to Final Review 99 71:21,24,25 72:1,5,15,24 73:19 74:11 75:10,12,24 76:13 77:5,8 77:13 78:8 79:3 80:5,13 80:23 81:1,8 81:24 82:3,6 82:17 83:6,17 83:21,23 84:5 84:15,17,25 85:5,12,17 86:2,12,23 87:5 88:8,16 90:2,9,13,19 justified 3:16 49:9 71:10 80:10 K Kagan 10:16,23 30:25 31:23,24 31:25 38:2 49:16 50:3,12 51:12 52:16,24 53:4,8,15,21 54:3,9 55:2,9 67:8 68:3,12 68:22 69:8,14 69:20 70:8,20 82:17 83:6,17 83:21,23 84:5 84:15,17 Katrina 85:11 keep 37:15 46:16 58:8,11 61:5 keeping 21:3 61:6 keeps 21:12 Keller 1:21 2:10 45:2,3,5,21 46:11,25 47:14 47:23 48:14,21 49:7,21 50:9 50:17 51:6,22 52:24 53:6,13 53:18 54:1,6 54:10,12,15,18 55:3,9,17 56:13,19 57:8 57:21 58:16 59:11,24 60:5 60:9,13 62:25 63:17 64:12 65:8,18,22 66:18 67:1,17 68:1,4,18 69:4 69:14 70:4,17 71:2,6,25 76:14 82:20 83:8 Kennedy 7:5,12 12:9,14 24:4,7 24:8,14 25:18 32:13,18,20,23 75:12,24 key 6:1 24:2 26:10 29:23 30:7 51:23 89:4 kind 14:10 18:1 37:11,23 41:5 62:23 70:24 77:25 83:3,7 84:7,9 86:3,5 87:2 kinds 14:13 17:17 62:3,5 90:5 knocks 31:7 know 15:15,17 16:13,14 17:14 22:16 23:3,10 23:21 24:6 31:4 32:10,19 34:13,15,16,23 37:2 40:21 46:16 52:4,17 54:24 57:17,19 58:5,7 59:4 62:5,21 68:14 70:2,11 78:17 79:25 known 48:6 L label 53:4,6,6,9 54:4 74:1 labels 68:24 labor 48:2 71:13 lack 4:23 11:12 11:25 land 13:14,18 14:3 40:23 language 28:21 large 48:9,9 larger 49:3,5 largest 45:8,19 Laughter 8:4 27:8 54:11 61:9,13,23 law 5:5,12 6:4 6:17,24 8:5,6 8:10,10 9:6 10:5,9 11:2,3 12:6,18,19,19 13:16 14:16,17 15:3 16:9,12 16:17,23,23 17:4,20,25 23:23 27:2,5 33:25 37:14,15 47:3 56:12,13 57:13 63:13 64:19 65:6,21 70:10 74:19 89:14,15 lawful 3:15,16 4:12 11:15 12:2 27:10 28:25,25 29:13 34:7 49:13 50:1 51:9,22 54:1,16,21 55:12 66:20,20 67:3,4,5 68:19 69:7 70:4,5,19 71:7,18 72:19 74:3 79:11 84:23 85:9 86:20 87:12,22 88:1,9 90:5 lawfully 5:16 6:8,9,21,25 8:22 9:4,22 26:19,25 27:4 27:23 28:5,9 28:13,13 29:4 29:11,21 30:3 34:11 36:12 41:9 52:5,9 55:22 63:5 65:11 73:6,7 73:11,20 79:18 79:19,24 87:24 88:5,11,17 laws 17:22 26:13 65:9,11 88:1 89:24 lead 4:18 leads 67:15 leave 38:13 58:7 legal 11:13 27:16,21 32:7 32:8 34:8,18 35:6 41:20 42:3,16 43:24 51:17 53:9 55:24 69:3 72:21,22,25 73:2 84:13 legality 49:18 legally 27:24 28:6 34:1 65:16,16 legislation 36:17 72:8 legislative 24:12 36:6,19 38:9 legislators 38:10 Legislature 25:3 legitimacy 15:18 legitimate 6:6 legitimately 15:3 let's 14:15 37:1 Alderson Reporting Company 56:10 61:6 64:25 68:23 70:12 83:9 level 27:20 licences 17:5 license 5:6,24 6:7,10,19,24 8:23 9:13,19 13:22,24 14:20 15:24 16:11 36:13 37:17 40:9 51:10 56:6,10,16,24 57:7,17,24 58:11,17,18,20 59:15,21 85:23 licenses 5:16 6:14 7:8,19 8:11,16 9:4,5 10:25 11:11 12:7 14:18 36:8,20 37:19 38:11,25 39:5 39:21 40:15 42:9 43:11,11 44:23 56:12 59:3,8,13 60:17 78:18 light 12:17 71:14 limit 14:13 36:9 36:21 41:3 limited 49:6 81:10 84:8,8 limits 20:3,5,6,7 20:8 22:15 24:10 34:21 35:1 line 58:15 59:10 60:16 lines 58:5 link 53:14 linking 76:8 lists 31:5 literally 70:25 litigated 42:24 42:25 Official - Subject to Final Review 100 litigation 13:4,7 86:6 lived 3:13 57:18 living 72:9 84:12 lo 61:21 loads 33:11 logical 4:15 long 53:18 58:6 75:16 longer 48:18 78:7 84:1 look 8:6 23:4 68:20,20 78:15 87:15 looking 8:10 61:2 Los 1:19 lose 10:13,17 losing 40:11 loss 84:3 losses 59:1 lost 61:21,24 lot 38:24 61:2,3 63:17 70:2 low 4:3,9 35:23 50:25 51:5 52:20,21 66:12 68:25 74:12,14 76:16 low-priority 41:21 lowest 3:20 20:9 20:22 21:6 LPRs 3:13 4:2 19:12 luckily 61:10 M majority 18:9 makers 44:9 making 31:3 55:7 59:16 73:14 87:1 manageable 22:15 mandates 65:6 manner 18:21 market 48:2 71:13 Massachusetts 18:5 19:1 40:18 61:15,20 61:21,22 62:14 62:17,21 63:3 matter 1:12 35:6 37:3 59:7 66:11 90:22 matters 51:9 73:24 79:12,25 80:1 maximize 22:9 mean 10:16,17 11:6,22,24 15:14 18:7 20:12,15 27:4 27:18,24 28:6 33:11 45:11 46:8 51:2 52:8 53:9 56:23 58:23 66:1,25 67:9 68:7 76:5 77:11 79:8,16 83:3,19 85:5 Meaning 59:19 means 6:10 27:12,13,15 43:6 55:20 61:18 66:22 74:14 meant 34:24 mechanism 47:2 Medicare 25:12 50:2 52:15 56:7 Medicare's 54:20 Mellon 61:15,15 62:22 member 15:24 21:4 members 46:6 61:4 memo 53:1 55:25 67:5 68:2 74:4,23 74:24 memorandum 51:14 54:9,10 65:1 75:2 76:21 77:1,3 79:12,12 mention 55:18 55:18 mentioned 61:7 85:1 mere 74:10 77:3 77:17 80:2 merits 19:9 88:22 met 34:24 miles 23:25 million 6:11 16:1,12 23:25 24:4 25:2,4,22 25:23 26:4 29:9 45:13,14 46:18 48:10,10 48:25 53:11 59:5,8 66:7,9 90:16 millions 28:15 28:16 53:16 57:10 70:12,22 89:13,16 90:11 90:11 mind 61:5,6 66:14 minds 52:23 53:12 69:1,25 70:14 minimal 48:2 68:21 minimis 83:4 minimum 17:20 17:22 minuscule 71:12 minute 70:8 minutes 85:13 misquoted 55:25 moment 14:17 54:5 Monday 1:10 money 13:22 39:5,24 40:11 40:15 46:23 58:14 60:18,22 60:24,24 61:19 62:2,10,16,23 63:11 64:24 66:8 74:16 morning 3:4 mothers 35:16 motor 57:22 59:21 multiple 69:15 75:23 Murphy 1:23 2:13 72:1,2,5 72:18 73:2,22 74:17 75:18 76:5,19 77:7 77:11,15 79:1 79:5 80:9,15 80:24 81:3,21 82:2,5,8,17,24 83:14,20,22,24 84:11,16,20 85:3,7 N N 2:1,1 3:1 nanosecond 12:21 narrow 39:18 68:7 88:5 nation's 45:9 nationality 80:17,22 nature 24:23 nearly 46:17 necessarily 33:11 52:8 74:17 necessary 46:23 need 42:6 56:19 80:2 Neither 59:25 never 27:19 61:8 Alderson Reporting Company 74:15 90:1 new 10:5 12:6 13:10 36:16 57:18 nine 26:4 nonenforceme... 67:13,14 nonqualified 10:19 nonuniform 35:21 normal 10:10 14:15 normally 18:22 note 36:17 37:25 41:22 85:18 noted 49:24 notice 68:14 notice-and-co... 32:16 33:3,5,6 33:18 71:15,19 75:16 notification 4:10 notifies 68:24 notion 74:10 November 68:5 number 8:13 13:10 14:23 21:7 24:7,16 41:3 45:19 47:24 48:12 71:12 numbers 6:23 49:3,5,6 59:6 90:17 numerous 9:5 O O 2:1 3:1 object 32:24 objecting 51:2 objections 78:11 obtain 36:3 obviously 18:8 22:18 23:14 occur 10:9 occurred 68:5 Official - Subject to Final Review 101 offer 5:15 offered 5:23 Office 34:17 official 4:10 officially 6:21 6:22 26:12,15 30:12 oh 8:20 33:1 65:22 70:22 okay 9:8,14 21:23 22:2,10 53:21 64:18 65:4 83:6 OLC 23:4,4 35:1 55:25 old 61:7,7 once 45:17 52:20 53:17 74:5,8 79:17 ones 16:15 62:13 82:6 open 23:11 opinion 10:5 11:5 16:16 18:9,19 23:4 34:18 78:25 89:1 opportunity 35:17,23 36:2 opposed 71:7 opposite 23:15 option 11:13 12:1,2 options 11:9,9 oral 1:12 2:2,5,9 2:12 3:7 35:11 45:3 72:2 order 7:16 10:8 13:4 74:25 87:16,20 Oriana 54:22 originally 50:13 ought 8:22 43:6 87:25 outcome 41:14 42:20 outlining 58:1 outside 74:9 overruled 61:11 Oversight 64:21 owner 14:3 pay 61:19 62:10 62:14 penalties 43:19 43:22 44:13 pencil 32:5 P Pennsylvania P 3:1 13:10 package 72:16 pension 64:19 page 2:2 18:18 people 4:22 6:7 25:22 26:23 6:9,12,23 7:1,2 27:1 89:2 8:16 9:4,5,9,13 pages 24:15 9:19,22 16:11 26:23 63:25 16:13,25 18:16 paper 59:20 20:25 22:5,14 paperwork 22:22,23 23:7 59:16 24:5,16 26:4 parameters 27:13 28:16,16 21:10,12 29:7,7,9,11,13 parcel 13:14 29:14,25 30:2 parens 62:12 30:12,19 31:6 63:1 86:4 33:12 34:7 parents 3:13 4:2 36:12 37:3,4 19:11 23:6,6 38:25 39:21 parole 49:9 45:13,20,25 54:24 89:19 47:4 50:6,18 part 8:1 30:23 50:25 51:2,19 44:7 51:6 52:19 53:11,16 67:13 68:23 55:8 58:6,10 72:16 74:4 58:15 59:5,10 particular 73:4 61:17,18,20 87:13 89:10 66:7,10 70:3 particularized 70:10,12,22 5:9 71:12 72:9 parties 60:1 74:18 76:1,16 party 78:10,10 76:17,22 81:13 passage 30:18 81:25 85:10 passed 30:10 88:4 89:10,13 47:14,24 64:19 89:16,17,19,20 68:8 75:23 90:2,6,10 81:5 84:11 percent 45:14 path 54:25 78:7 45:16 48:10 79:13,16 84:3 percentage 84:23 85:9 45:18 pathway 72:16 perfectly 6:6 72:18,19 90:3 70:10 patriae 62:12 period 55:21 63:2 86:4 90:7 permanent 34:7 permits 48:23 48:25 permitted 55:21 83:25 permitting 47:20 person 6:19 41:10 68:15,25 personnel 59:4 persons 7:9 8:11 pervasively 65:25 Pet 55:19 petition 31:5,15 31:19 Petitioners 1:4 1:18,20 2:4,8 2:18 3:8 35:13 85:15 phrase 27:10 32:1 51:13,16 51:16,22,25 52:18 88:9,12 phrasing 38:3 physical 62:17 picked 78:12 piece 53:24 59:19 pieces 53:24 pits 64:14 place 37:15 places 57:18 plainly 77:21 plan 64:20 plausible 30:15 30:15 played 78:12 please 3:10 25:1 30:25 35:15 45:6 68:3 71:4 72:6 point 4:7 6:3,18 7:11,15,17 10:15 12:3,14 12:14 14:7 15:18 17:2 Alderson Reporting Company 20:17 24:2,9 25:14 26:10 28:18 30:8,24 31:2,3 42:7 46:8 47:12 61:24 62:20 68:15 73:4 75:24,25 76:1 77:2 79:9 83:1 84:18 85:19 86:2 87:3,10 89:4 pointed 84:22 points 15:14 86:13 policies 23:2 policy 3:15 5:11 5:14,17 6:6,15 6:16 7:6 8:5,7 8:8,21 9:1,3,18 13:4,24 16:24 20:6,8 21:1,7 22:9 23:12 24:3,19,24 26:11 36:7,11 38:1,11,19 39:13 41:4 45:9 57:15 64:7,8,17 65:1 65:17 70:21,23 70:24 83:1,8,9 83:23 84:8,9 84:14 88:23 political 37:4 39:12,19 61:5 62:4 63:15 pollution 18:15 population 45:15 48:11 populations 21:22 position 41:7 42:22,23 44:9 51:24 54:7 55:24 80:5 87:5 88:10 possess 54:21 Official - Subject to Final Review 102 possession 54:20 56:8 possible 28:12 34:4 potentially 6:12 power 45:8 49:11 62:6,7 72:8,13 76:10 76:11 77:9,19 80:10,10,15,17 80:18 powers 7:7 71:23 78:5,5 practice 47:17 69:6,18 83:16 83:18,20 84:19 practices 84:21 pre-1997 78:4 precedent 41:15 42:19 43:1 precise 82:14 precisely 4:8 12:23 14:21 47:6 64:10 65:18,23 predecessor 33:23 70:24 preempted 10:6 10:7,8,10 11:2 11:6 12:20 preemption 9:23 10:22 14:23 37:10 38:5 preexisting 49:14 68:17 69:2 prefer 41:10 preliminary 32:15,21 64:1 75:17 premise 17:3,10 17:12 20:20 premised 44:7 presence 6:22 26:12,15 27:11 30:12 34:5 38:15 49:25 50:1 51:9,22 54:2,17,21 56:2,3,4 66:23 66:25 67:4,5,6 68:19 72:19 74:3 79:11 87:12,23 88:9 90:8 present 3:18 5:16 6:8,10,21 6:25 8:22 9:4 9:22 17:5,7 19:24 26:25 27:2,4,5,23,24 28:5,6 29:11 29:21 30:3 34:11 36:12 47:5 52:5,9 55:22 63:5 65:11,16 73:6 73:7,11,20 79:18,19,24 88:5,11,17 presently 3:18 President 19:23 22:24 23:8,10 24:15,18 33:22 34:17,24 45:17 48:13 62:6 President's 49:10 pressing 3:21 Presumably 14:19 pretend 67:5 pretty 43:19 prevent 86:7 previous 36:20 40:8 70:4 prime 64:18 principal 3:24 4:19 principally 19:15 prior 20:16 44:11 priorities 20:10 25:4,8 74:24 75:1 76:21 77:1 78:17 prioritization 53:1,20 prioritize 21:19 priority 3:20 4:3 4:9 20:23 21:6 35:24 51:1,5 51:20 52:21 66:12 68:25 74:12,14 75:1 75:5 76:16,23 private 40:13 probably 7:15 74:15 problem 10:2 25:9 27:10 32:4 66:7 67:21 76:8 problematic 75:20 82:13 procedural 40:25 41:2 procedure 32:16 71:19 proceed 75:13 75:19 proceeding 33:7 79:24 89:22 proceedings 29:15 73:11 79:20 89:16,18 process 34:25 36:19 38:9 58:1,14 59:1 71:11 processed 58:12 processing 59:15 profit 59:2 profiting 59:3 program 13:15 45:22,23,24 46:3 48:13,15 48:19,25 49:13 51:24 68:21 71:7 76:12 80:1,9 84:2,22 programs 49:7 77:24 78:3,4 85:4,8 progression 4:15 promulgated 30:17 promulgating 71:16 proof 86:7 proper 89:15 proposal 5:25 proposed 14:1 prosecution 41:21 protect 62:18 protected 65:9 65:10 80:20 protecting 18:14 protection 14:23 18:16 37:10,22 38:4 protective 49:8 provide 5:5 34:5 35:22 43:24 provided 25:3 81:19 provides 38:11 providing 5:3 provision 32:10 33:23 85:24 provisions 22:13 public 86:21 purports 66:18 purpose 87:23 purposes 88:11 88:17 pursuant 45:22 78:5 88:24 pursue 11:10 73:10 79:23 pursuing 79:20 put 13:3,7 32:5 40:3 47:5 63:25 77:20 Alderson Reporting Company putting 41:20 73:15 74:6 77:17 Q qualifies 52:6 qualify 5:6 74:25 89:20 90:5 quarter 16:1 quasi-sovereign 40:22 question 6:2 11:18 17:7 19:19 21:15 23:18 25:18 30:17 38:23 39:18 42:12,16 46:14 59:9 60:4,6,21,25 71:5,8 77:16 78:15 79:7 82:25 83:7 questions 36:24 quintessential 57:12 quite 6:17 8:18 18:25 38:24 quote 26:24 33:24 47:25 48:2 55:19 quoted 87:21 quoting 49:6 R R 3:1 Raines 15:15 raise 15:2,3 36:23 37:22 raised 86:12 87:11 raising 62:25 63:2 ramp 58:10,23 59:10 re-entry 54:19 88:13 Official - Subject to Final Review 103 reached 23:4 read 38:23 87:16 89:1 reading 28:18 30:15,15 31:7 89:20 real 9:16 37:12 53:22,23,23 58:17 67:12,13 76:8 reality 3:17 25:1 27:12 29:2 realize 27:12 63:8 really 10:21 11:4 13:2 14:13 15:14 17:15 32:6,10 34:13 40:7 46:21 51:16 52:16 58:24 59:3 60:23 64:14 72:16 73:24 77:1 81:14 85:7 89:5 reason 5:4 16:5 16:18,19 27:9 38:8,24 39:2 52:1 54:7 55:10 59:12 62:9 87:24 reasonably 64:23 reasoning 36:16 37:9 reasons 4:24 39:3 REBUTTAL 2:16 85:14 receive 7:1 41:25 43:11 44:7 72:10 73:18 75:6 received 8:13 receives 41:25 receiving 43:12 recipients 10:20 28:17 36:23 54:25 58:18 reckless 89:24 recognition 24:23 recognize 14:8 14:10 recognized 52:12 65:24 record 38:10,17 38:21 39:3,9 39:10,11 64:1 recording 48:1 red 32:5 redress 43:15,15 redressability 5:7 85:19 redressable 5:1 refer 82:10 references 87:11 referring 51:13 51:14 reflected 6:17 refugee 37:4 refugees 86:10 refused 86:15 reg 31:4 regardless 48:4 register 36:2 regular 9:24 58:14 59:21 regulates 65:25 regulating 14:4 regulation 6:17 30:16 31:13 47:13,20,23,25 48:5 53:3 75:8 75:14,21 76:3 81:17 82:13 regulations 20:23 52:4 55:5 67:3,7,9 67:11,11,14,16 67:18 68:17 69:2 73:3,13 74:2 88:19 regulatory 13:15 74:4 rejected 30:21 89:22 related 20:24 40:22 relations 21:3 relationship 43:10 44:22 reliable 35:23 relief 12:10 35:18 46:1 rely 56:22 relying 44:8 remain 72:21 remained 46:7 removal 3:12 4:10 19:11,23 20:10 21:19 22:24 27:18 29:14,14 49:22 50:11,14,19 52:8,13 73:11 74:6 77:10 79:20,23 89:18 90:17 remove 3:17 23:12 66:6,8 73:15 74:16 removed 35:20 removing 25:4 50:18 render 12:24 79:24 Reno 49:23 52:12 repeat 79:4 Repeatedly 88:23 reply 26:23 56:1 87:21 represent 62:11 Representatives 1:24 2:14 72:3 repudiate 47:16 require 67:23 required 10:18 17:4 requirement 44:2 requirements 63:19,19 requires 10:4 63:12,13 Research 85:2 reserve 35:7 resettlement 86:9 resident 34:8 86:21 residents 80:7 resolved 36:24 37:11,23 resources 3:17 26:2,5 respect 12:25 13:12 18:9 25:19 32:9 36:3 50:5 55:8 69:10 70:23 86:1 87:3,10 respecting 35:1 responded 48:16 Respondents 1:7 1:22,25 2:11 2:15 3:15 4:11 4:20,23 45:4 72:4 response 69:16 responsive 79:6 rest 39:4 restricted 30:18 47:2 result 5:11 16:24 17:20 36:19 results 67:15 review 71:18 revocable 35:18 revolve 36:15 Rhode 16:2,3,7 right 4:18 12:15 12:24 14:17 15:23 19:25 Alderson Reporting Company 23:12 24:7 25:6 26:2 27:16 28:1,3 28:11,17 29:6 30:11 31:18 35:5 40:25 41:2,20 42:3,5 42:16 43:4 49:6 53:21,25 58:4 65:17 70:13,18 80:24 81:18 83:18 88:6,6 rights 26:14 ROBERTS 3:3 4:14 5:13,22 6:5 8:20 9:8,12 10:11 13:2,13 18:3 19:4,18 19:22 20:2,11 20:14 21:23 22:2,10,20 25:7 26:22 27:23 28:2,5 30:1,5 33:8,21 34:10 35:9 36:10 40:10,17 44:25 57:3 60:19 71:4,24 72:1 73:19 75:10 85:12 90:9,13,19 rulemaking 31:15 32:24 87:16,20 89:22 ruling 29:3 run 56:24 S S 2:1 3:1 Saenz 1:19 2:6 35:10,11,14 36:14 37:6,20 38:6 39:6,8,11 39:22,25 40:2 40:5,12,20 41:13,22 42:5 Official - Subject to Final Review 104 42:14,18,23 43:5,25 44:14 44:17 45:1 Salvadorians 49:3 save 56:25 saying 6:20 8:14 8:18,22 9:14 10:11 11:7,24 11:25 13:20 21:13 23:1 30:14 36:11 42:13,15 46:17 50:4,25 58:23 60:11 65:11 67:10 69:13 70:23 76:16 78:22 84:6,18 87:7 says 8:10 10:18 12:12 13:21 14:16,17 16:10 16:12,23 23:22 26:11,24 31:4 50:24 51:5,15 52:5,7 54:4 57:4 61:25 65:1 69:21 74:5,12 79:13 79:23 80:20 81:25 84:12 86:20 87:18,21 88:2 scarcely 61:7 scheme 74:4 scope 19:19 34:19,19 70:21 71:7,8 77:25 83:1,9 89:5 SCOTT 1:21 2:10 45:3 screened 63:23 second 5:8 15:25 16:4,11,18,22 34:14 62:19 75:11 85:21 Secretary 3:11 4:21 21:1 34:17 section 10:18,22 28:18 31:17 41:12 75:15 86:24 87:20 secure 36:1 securities 58:19 security 3:11 25:11 32:9 49:20 50:15 51:3 52:15,18 54:19 55:16,18 56:8 58:19 74:14 76:18 87:19,23 88:15 see 7:23 16:8 44:24 55:14 62:20,20 69:8 87:17 seek 35:17 self-petitioners 68:9 senators 61:3 sending 16:12 sense 26:17 29:3 29:12 36:21 60:12 67:10 75:19 88:6 senseless 69:22 sent 68:14 sentence 27:3 separate 41:23 44:18 separated 35:19 separately 66:16 separation 7:7 71:23 serious 38:4 39:4 Service 85:2 set 20:5 21:11 25:5 36:23 65:17 67:15 sets 64:25 setting 24:18 settlement 42:25 seven 87:14 severe 43:19 SG 73:21 78:13 SG's 78:23 shadows 46:18 shoe-on-the-ot... 17:15 show 57:22 64:6 showing 57:23 shows 40:5 side 18:1 25:14 38:23 60:1 63:22 86:21 87:12 sides 61:3,4 significance 32:8,8 46:15 46:17 71:9 83:9 significant 11:3 20:17 48:11 66:2 83:18 silent 46:8 Silverman's 89:1 simply 4:1 21:13 50:11,13 59:14 78:16 single 51:13 68:24 84:22 situation 12:23 18:25 58:9 78:21 80:8 situations 86:17 size 65:3 slip 67:2 slow 59:22 small 47:25 48:6 69:6,19 smaller 70:1,24 Social 25:11 32:9 49:19 50:15 51:3 52:15,18 54:19 55:15,18 56:8 74:13 76:18 87:19,23 88:15 soldiers 16:2 Solicitor 1:16,21 solicitude 18:21 40:19 somebody 56:10 57:17 63:10 73:15 soon 53:14 sorry 20:11 22:20 28:2 31:1,24 33:15 56:7 57:16 61:20 79:2 sort 17:14 58:3 60:24 Sotomayor 8:9 8:17 14:14,22 15:2,6,9 21:9 25:20,25 26:3 26:8 31:10,13 31:16,20 36:25 37:18 45:10 46:4,11,16 47:9,19 48:8 48:20 49:2 57:16 58:4,22 59:18 60:3,7 60:10 64:11,14 65:14,19 67:21 72:15,24 77:5 77:8,13 80:5 80:13,23 81:1 81:8,24 82:3,6 90:2 sounds 56:17 sovereign 63:2,7 63:14 64:9 66:3 special 18:20 40:18 78:14 specific 18:15 22:13 87:11 specifically 30:20 36:22 39:19,20 50:23 79:23 87:21 88:2 89:2,7,8 Alderson Reporting Company specifics 86:13 specified 55:20 speculative 18:4 36:5 speed 59:19 spend 40:15 58:13 62:1 spike 59:13 Square 80:8 Stability 64:21 standing 4:16,18 4:23 9:17 11:12,25 12:10 15:3 16:6,7,16 16:20 17:1,23 22:17 32:24 33:4,4,5,6,11 33:12,19 40:11 42:7 43:15 60:4,5,10,25 62:18,24 65:23 78:16 85:18 86:1,4 start 59:8 82:25 started 25:7 48:13 State 7:6 10:18 12:19 14:20,24 15:24 16:25 17:16,18,22,24 17:24,24 35:25 37:13,18 40:14 43:16,22 44:6 44:19 58:1 62:11 63:8,11 64:19 66:5 State's 36:6 40:8 40:22 58:17 63:1 stated 47:11 statement 9:2 50:23 States 1:1,3,13 1:24 2:14 3:4 4:20 10:18 11:15 18:14,20 19:25 23:11 Official - Subject to Final Review 105 26:25 27:17,25 28:10,13,14 29:5,12,22 30:3 38:13 40:14,19 41:3 55:22 56:15 58:9,10 61:3 63:5,15 64:3,4 64:15 65:5,8 65:10 66:1 72:3 83:10 86:9 statistically 48:1 status 7:3 27:17 27:21 29:8,13 34:8,8 37:5 41:21 49:8,13 49:14,15 52:3 52:6,13,14 53:2 56:11 67:3 70:5,5 71:8,18 72:21 72:22,25 73:2 73:3,7,12,16 73:25 74:2,7 75:8,21 76:9 76:10,11 77:18 77:21,24 78:14 79:17 80:20 81:22 83:2,5 84:4,24 85:9 88:1 89:17 90:6,16 statuses 90:5 statute 15:23,25 16:1,3,5 30:18 30:20 43:18 44:7,8 54:21 56:14 73:5,6,9 78:7 80:19,20 80:25 81:5,24 82:1 83:25 84:11 86:20 89:20 statutes 54:17 68:8 75:23 78:5 81:21 82:9,10 88:12 statutorily 82:18 statutory 20:7 21:1,17 22:13 29:17,20,24 30:9 45:22,24 46:13 48:15 49:12 54:13 69:4,10,12,15 70:18 77:21 80:14 81:2 87:11 88:17,24 stay 66:11 69:25 72:10 step 11:3 36:2 46:5,9 74:5 80:3 steps 49:17 stood 47:21 stop 63:9 stopped 81:15 stricken 88:9 strike 51:15 54:4 78:24 striking 82:7 struck 51:25 sub 52:5,7 subject 9:13 13:15,18 36:12 36:15 37:7 43:6 44:13 64:17 submerged 61:11 submitted 90:20 90:22 subsidies 36:9 subsidize 36:7 subsidized 36:20 40:9 subsidizing 40:15 substantive 9:6 20:7 sue 5:18,20 9:21 9:25 14:12,20 17:16 18:17,21 18:23 41:11 42:17,17 57:5 61:18,25 62:10 63:9,9,12 65:5 86:9,15 suggest 9:20 76:5 suggested 4:1 57:9 73:21 suggesting 53:9 suggestion 49:11 89:25 suing 12:15 62:3 suit 7:18 10:13 10:17,22 12:12 35:25 42:13,13 68:5 75:25 76:1,1 87:6 superseded 76:4 support 1:20 2:8 26:20 35:13 supporting 1:25 2:15 72:4 supports 37:13 suppose 7:5,5 23:9 68:12 78:12,12,15 82:17,18,20 83:6,8 supposed 17:8 73:23 Supreme 1:1,13 61:8 sure 5:19 19:21 25:21 33:7 50:3 68:22 77:7 79:1,6 surely 63:12 sweeping 71:16 71:20 switch 19:5 Syrian 86:10 system 35:22 44:2,3 56:25 57:14 systematically 64:22 T T 2:1,1 85:10 T- 68:9 tail 32:11,12 88:7,21 take 9:9,15 11:2 13:7 37:1 38:2 49:16 52:17,17 52:18 55:23 66:23 67:4 68:24 77:5 88:10 taken 9:2 45:18 47:12 51:24 63:18 74:5 talk 20:6,24 talked 24:9 talking 16:6 28:20 33:2 34:1 39:17 40:13 71:6 77:16 78:4 82:8,9 90:10 tank 64:24 targets 36:22 tax 25:11 taxpayer 62:1 62:23 86:4 taxpayers 62:2 technical 16:5 32:8 61:1 technically 16:19 teed 15:16 tell 7:21 8:7 11:14 12:1 17:10,11 51:19 65:6,15 75:25 81:4 telling 25:8 71:11 temporary 35:18 49:8 59:19 80:20 tens 70:11,12 term 54:14,16 Alderson Reporting Company 73:6 terms 23:15 43:18 terrible 27:11 territory 62:17 test 42:9 63:20 63:24 65:13 Tex 1:22 Texas 1:6,21 3:5 5:5,12 6:24 7:6 8:5 9:3 11:3 13:21 14:4,6 14:15 16:10,13 16:17 19:10 35:16,25 36:4 36:11,12,18 37:13 38:1,7 38:18 39:19 42:9 43:16 44:20 56:12,13 56:14 57:17,19 64:19,23 75:13 78:10,16 86:8 86:10 Texas's 79:9 text 30:16 Thank 19:7 35:8 35:9 44:25 45:5 71:24,25 85:12,16 90:18 90:19 theirs 10:5 theory 9:6 10:3 21:13 29:4,12 30:22 41:11 71:16 77:23 86:3,8 89:5 they'd 33:6 thing 8:18 11:5 29:23 32:1 34:14 40:3 45:12 60:22 66:15 87:18,18 things 4:12 14:15 21:2,17 22:15 27:19 29:20 34:4 Official - Subject to Final Review 106 52:14 think 4:17,19 7:10,20 8:3 9:16,20 10:1,6 10:24 11:1,6 11:13,17,22 12:5,13,21 13:5,6,8,16 14:9 15:13 16:22,25 17:2 17:10,11,13,13 17:15,25,25 18:6,18,24 19:8 21:15 22:16,18 23:11 23:20 24:2,21 24:22 25:13,17 33:1,25 34:3 34:13,23 36:10 36:14 37:6,25 38:3,6 41:14 41:22 42:1,18 44:6 46:12 53:4 55:9 57:8 62:19 63:17,22 65:3,8,12 68:12,15,19 69:4 72:25 75:14,18 76:7 76:14 79:8,9 82:24 85:21 86:2,25 87:14 88:6 89:4 thinking 12:17 12:18 61:14 thinks 16:3,4 32:4 third 30:24 31:2 86:1 THOMAS 1:19 2:6 35:11 thought 32:20 34:15 69:9,11 78:13 thousand 26:4 63:25 thousands 7:4 29:10 70:12,13 89:17 three 4:23 35:16 71:1 72:7 throw 12:21 Tiananmen 80:8 tie 21:1 56:9 ties 75:21 time 12:10 14:9 20:4 23:10 34:16 35:7 44:24 45:15 47:22 51:23 55:21 71:2 78:6 80:24 81:1 83:25 87:1 90:7 timely 36:3 times 49:18 76:15 87:14 TNU 49:4 today 12:15 51:16 85:20 told 21:19 tolerated 26:12 26:15 28:1 34:5 38:15 56:2 66:23,25 90:8 tolerating 6:22 30:13 toleration 56:3 tolling 32:10 tomorrow 12:15 14:16 51:21 totally 16:8 32:5 32:6 89:23 tougher 50:10 transferred 62:6 transferring 16:1 transform 66:19 transformation 52:11 transforming 49:25 55:11 treating 54:23 84:18 understanding 82:14 understood 68:23 undocumented 25:2 84:9 undone 47:13 unelected 62:7 unfortunate 66:24 67:2 uniform 57:14 unique 24:23 United 1:1,3,13 1:23 2:14 3:4 4:20 11:14 19:24 23:11 26:25 27:16,24 28:9,13,14 29:5,12,22 30:3 38:13 55:22 56:15 U 64:3 72:3 U 85:10 83:10 86:9 U-visa 68:9 unity 21:4 U.S 3:13,22 unlawful 3:18 19:11 21:4 12:5 16:5 35:16 42:10 19:24 45:7 U.S.C 86:16 47:7 49:25 ultimately 10:7 55:11 56:3,4 76:25 82:25 unlawfully 3:19 ultra 71:1 19:24 47:5 unauthorized 72:10 46:18 47:16,18 unprecedented unchallenged 45:7 49:12 52:25 71:20 unconstitutio... unquote 48:1,3 16:4,18 81:20 unreasonable underground 43:7 26:21 unreviewable undermine 22:9 19:13 understand 6:13 upend 89:23 10:17,21 23:17 upheld 43:18 25:13 28:21 upside 24:20,22 32:6 50:4 urge 87:15,15 60:25 67:9,24 use 44:2 58:18 77:16 79:6 69:22 71:15,19 tremendous 61:5 tried 17:9 85:25 triggers 67:10 73:16 trouble 27:6 true 16:15 28:17 41:19 58:25 60:8 84:25 try 12:6 17:11 trying 8:25 16:8 22:9 27:21 47:7 TSA 58:19 turns 79:10 two 18:10,11 22:11 26:23 29:20 34:3,4 43:13 61:7 88:17 types 77:23 Alderson Reporting Company 83:2,4 88:12 uses 69:19 V v 1:5 3:4 13:10 15:15 61:15,15 62:22 63:3 64:3 65:15 vague 16:9 valence 61:5 valid 17:25 value 60:8 vast 6:23 vastly 76:3 VAWA 68:9 vehicle 59:21 Vehicles 57:22 verified 44:3 verifies 58:2 Verrilli 1:16 2:3 2:17 3:6,7,9 4:6,17 5:19 6:1 6:15 7:10,14 7:20,24 8:3,5 8:17,24 9:11 10:2,14,23 11:16,20 12:4 12:13 13:8,25 14:21 15:1,5,8 15:13 16:21 17:9 18:6 19:6 19:21 20:1,3 20:13,19 21:16 21:25 22:4,12 23:1,14,20 24:6,13,21,25 25:6,16,23 26:1,7,10 27:6 27:9 28:1,4,7 28:11,15,23 29:1,19 30:4,7 31:2,12,14,18 31:21,24 32:3 32:17,19 33:1 33:13,15 34:3 34:12 35:5 40:24 49:17 Official - Subject to Final Review 107 51:15 54:4 85:13,14,16 86:25 87:7 88:14,18 90:4 90:11,15 version 82:19 veterans 63:21 viable 11:13 view 11:14 23:18 42:3 79:10,10 violates 7:7 violating 17:24 26:13 violation 27:2,5 vires 71:1 virtue 69:1 visa 49:4 visas 85:10,10 85:10 void 12:12 voluntary 45:23 48:15,19 78:6 83:24 84:1 85:4 61:18 74:22 75:3 wants 14:19 32:4 41:17 46:10 55:23 74:1,21 80:3 Washington 1:9 1:17,23 57:18 wasn't 17:19 18:17 33:15 way 7:22 10:10 11:23 15:11,11 19:1,2 21:21 27:17 31:10 32:25 33:25 38:2 39:23 43:1 48:24 70:5 72:25 75:6,13,19 76:6,7 81:10 85:22 ways 40:1 we'll 3:3 74:14 75:10 we're 6:22 9:13 12:1,7,7,18 W 14:3,4 16:5,23 W 80:6 23:12,14,16 wage 17:20,22 24:10 25:21 wait 12:2,3 38:8 33:1,2 37:5 58:6,15 59:10 40:13 50:7 70:8 52:7 55:10 waiting 37:4 60:16 61:19 walk 20:21 59:5 62:25 63:2 want 5:2 6:7 68:6,25 71:6 7:18 8:20 9:3 74:19,22 78:22 9:21 11:5 83:11 87:22 12:11,16,19 88:6 16:13 26:9 we've 26:21 29:8 38:24 39:5 29:15 66:21,22 46:19 52:16 74:5 58:18 59:8 weeks 59:20 62:19,20 64:23 went 34:17,24 67:4 75:5 79:5 87:16 79:6 86:7,13 whatsoever 42:8 wanted 46:21 51:17 64:20 51:16 59:22 Whiting 43:17 44:1 65:15 who've 22:23 widowers 68:10 widows 68:10 win 42:13 Wisconsin 60:15 won 62:15 word 6:2 66:24 words 5:15 78:14,24 79:11 79:25 work 4:22 5:3 19:16,17 20:24 25:10 26:16,17 26:19 28:9,13 28:25 29:4,7 29:23,24 30:9 30:11,19 31:6 34:6 41:9,23 41:25 42:2,5,7 43:5,8,8,9,12 43:14,20 44:3 44:17,18,21,22 45:13 47:1,2,6 47:10,20 49:19 50:1,14 51:3 52:17 53:24 55:5,15,18 56:10,18 66:16 66:19 68:16,19 69:2 70:14 71:10 72:10 73:17 74:7,13 75:6,21 76:9 76:18 78:15,24 79:14 81:18,23 82:12,22 83:13 84:10,13 86:14 86:18 87:24 89:6,7,10,13 90:6 workers 44:5 working 56:11 works 56:21 world 27:14,15 77:22 worrying 60:23 11:36 90:21 120 48:17 1324 28:18 30:10 31:7 1324a 84:14 1324a(h)(3) 82:9 1324b 86:16 15 31:7 15-674 1:4 3:4 16 26:23 31:8 1611(b) 87:20 1621 10:18,25 18 1:10 1981 41:12 X 42:13 86:24 x 1:2,8 87:6 1986 30:10 Y 31:11 46:25 yeah 23:20 32:3 47:11,13,14 33:13 59:11 81:17 84:17,17,17 1987 30:16 year 29:11 48:23 47:24 71:9 50:18 70:25 89:21 years 22:11 1989 80:6 30:22 55:6 1990 45:11 48:9 69:24 70:10 48:14 81:4,5 72:7 83:11 1996 46:2 47:1 York 57:18 48:16 87:17 Youngstown 1997 78:2 71:21 2 Z 20 68:5 zone 63:19 2008 29:6,9,15 65:13,19 85:24 90:16,17 zone-of-interest 2010 3:14 63:23 2014 68:5 2016 1:10 0 25 59:3 69:24 70:10 1 26 63:5 1.3 52:5 73:5 79:22 87:13 3 1.5 45:13 48:10 3 2:4 10 26:4 3.5 29:8 10:04 1:14 3:2 30 30:22 55:6 1000 48:23 83:10 11 46:18 325,000 29:15 11.3 25:2 66:7 worth 48:1 wouldn't 5:18 10:17 18:22 20:20 57:14 64:8 71:13 75:12 write 27:4 writing 27:7,10 written 9:1 wrong 8:21 16:17,18 28:19 32:25 54:7,8 88:25 Alderson Reporting Company Official - Subject to Final Review 108 90:17 35 2:8 45:16 377 58:1 59:11 382 58:1 59:12 4 4 45:13 4.5 90:16 40 45:14 48:10 400,000 25:22 26:2 50:18 413a 55:19 45 2:11 47,000 45:25 49 89:2 5 5 59:8 500 48:23 500,000 38:25 520 18:18 553 75:15 553(c) 31:17 6 7 72 2:15 76 55:25 8 8 73:5 79:22 86:16 87:13 85 2:18 9 Alderson Reporting Company