all right then let's begin please thank you your honor may please the court daniel tenney for the united states as the th circuit and th circuit have already recognized a stay of the injunction of the issue here is warranted we respect disagree with the th circuit's conclusion on standing with the th circuit otherwise correctly reasoned that that the rule is a permissible interpretation of the public charge statute and is not otherwise prohibited  as the th circuit recognized the term public charge is ambiguous arm has not been given a fixed definition by congress and the consistent the main consistency over the years has been that the executive branch has been given discretion i have a couple of problems with the merits so i'm not saying that you also mentally won't win but the question is is vis in doubt  created it as being perfectly obvious and i have a couple of doubts one is i take it that the idea is to deal with long term charges not emergency situations is that right it's definitely not emergency situations i mean it has to be sustained it's term is maybe well yeah i mean the cases that are not all that definite and the history that if it isn't an emergency situation why this notion that if you use morven one of the  abuse charges that counts each one counts is a month that seems to be at least there is an argument that that is irrational because if somebody has an emergency crisis because of which he or she has to use all of them in one week under a rule that has been set up that makes we quibble and of the twelve months and that doesn't seem to me to make much slim's two responses to that st just directly on that point i mean what the agency explained is that it's trying to measure the degree of dependence on public benefits medicaid so that's but but the agency concluded that a person who is relying on multiple benefits at the same time is more dependent on public resources then  you say the more of ones each counts is if it is a mom seems to me a bit odd the other thing that frankly seems in mid august is always very very desirable exemptions for kiddies you know all the things with save it minors and so on that may be a desirable thing in some way but how does that go to whe views are long term or or serious likely to be charges numbers state that is it looks to me more at least argument could be made that what is going on here on the m is a decision of which charges you want to be for and which charges you don't want to be for and that's harder to put together with the seek statute which talks about charges now i'm not saying that exemptions aren't ones that are desirable but it cast enough doubt so that a little uncomfortable with saying it's a clear thing ok if i could circle back to my nd response to your earlier question or i can answer this one st whichever you prefer the other thing about the emergency situations is this is a prospective inquiry the question is whether  you're likely at any time to become a public charge in the future so you know if there is some you know obviously the person who's making this determination isn't going to know that there is going to be some catastrophe that's going to lead to your being out of these benefits so as a practical matter it's not clear that the issue that you raised and and the agency explained that you know when it's looking backwards it will look at the circumstances of the circumstances inquiry and the fact that you've used the benefits so if for example you know you had a fire in your house and you used a lot of benefits in one week and then you recovered that would be taken into account in that retirement if the circumstances and they wouldn't label you likely to become a public charge in the future so the issue is pretty clear that if  the twelve month thing you're you're in trouble practically speaking if you if you have the twelve months in the three years that pretty will does it well no i mean they were actually quite specific about this they address in the final rule i think at the page number for you if you want but what they said was they would look at the circumstances and the example they gave it's different from the one you gave but it is an example if you use the twelve months but you had for example a very low benefit amount you know but but sustained and then you came off of the benefits and there was no indication that you would need to go back on that person would be likely to become a public charge even though in the past they had used it's in a thirty six month period so just then the whole thing you have to keep in mind that it's a tablet if the circumstances inquiry it's not saying that any single factor necessarily means that in the future you are likely to use benefits at this level to get back to your probative because you know kids aren't expected to work and support themselves when they're kids and well but it is their parents and if you're looking to whether parents are likely to be charges if they are in situations where we need to do fings for children that is and are not able even to do that seems to be highly predictive of who becomes charges now mind you i'm not saying the merits will come out one way or another because that isn't what we can decide today and i've been sitting here for twenty five years have seen too many of these cases where when they are i understand your i mean i mean i will note that the points that you're raising here are not the grounds on which the district court decided the case which i understand that but really what we submitted to the district court made some errors that we've that we are challenging here that was the basis for the court's injunction and we submit that that was in error for reasons largely explained by the th circuit and that so i'd like you if i could interrupt for a minute here  i'd like you to address our procedural posture ordinarily we look at states to preserve the status quo you're asking for a stay to allow you to allow the government to implement a major why should we break from our standard process absent a clear abuse of discretion what we have complicated questions about the merits of this new rule which everyone agrees i think we represents a step away from where the government has been for years where there are interesting and somewhat complicated in fact heavy standing questions where into my reading the question of irreparable harm is you know very  i think your question largely goes to the nature of the harms to the government as a stronger harm to the government would would give a stronger reason to issue a stay which we recognize as you know it is an extraordinary relief i mean butt what's happening here is that the political branches in the executive branch in particular in this context have been charged with making determinations about which should be admitted to the united states and the circumstances under which they should remain and and as we've explained and i don't think this is seriously disputed the decisions that will be made while this appeal is pending will grant permanent status number of and if they become charges they can be can be removed in many cases but not all cases they can get the benefits for five years that's correct the removal for a public charge requires a set of additional considerations has for her and a declaration of an emergency by the president or by anyone which says this has to come into place you mediately one of the one of the things that interests me i mean obviously the government says it's an emergency we have to take that very seriously even for a short period of time that has ever been any such statement you know you're out of there is not a declaration of an emergency i mean there is a way of the harms to be darth of course and and i guess the the other point i would make on this point is you're  saying it's irreparable harm because some people will be admitted under the old rule which has been in fact for decades and not the new rule over a period of a couple of months is that right i mean it's likely to be more than a couple of months assuming the court takes time to write an opinion but times a decision if there is an emergency to be announced an opinion will be issued there after i mean i think i think the fact that it's permanent the fact that it's an interference with the determinations about who should stay in the country which is a core executive function and then the other point i'd like to add to this which i think is critical here the district court here is nationwide injunction so even though the th circuit you know this court can balance the factors in this court can conclude whether it thinks injunctive relief is appropriate the th circuit already done that the th circuit already done that but those rulings don't have a fact because this court argument that is made is that it has nationwide effect but i take it you are saying that the that these plaintiffs don't really need a nationwide injunction i don't think our honor it was limited to the state of illinois because the court there concluded the district court there concluded that the harm to the plaintiff in that case could be remedied by an injunction limited to the state of illinois and and so i mean we think obviously injunction should be stated it's entirety but on a minimum the nationwide aspect of it could you tell me whether when we look at that we look at the harm to the plaintiffs that is  to the state of new york and to have a nonprofit or we also look to the harm to be aliens who are not admitted or not i didn't see that much discussed but in  general when we're talking about irreparable harm what is it that we look to do we look to be partners before us which normally we would do or are we supposed to look more broadly in the basic principle is that an injunction should be no more intrusive to the defendant than necessary to remedy the injuries of the plaintiffs who come to court and you and you say i have these injuries and i want the court to remedy them and then if you can demonstrate i'm not we're not saying there can of nationwide injunction we should look to the injury these plaintiffs not to the people whom they are trying to protect that's correct because they don't have standing to represent in other states and i think that the way this particular set of cases has played out is illustrative of the reasons for that if you know california filed its own lawsuit and so did washington and the th circuit has held that that a stay we have the injunction there is warranted and that the rule should go effect in those states you know the idea that the government has to win every single case in order to implement its rule everywhere while the plaintiffs just have to win one case somewhere and even though there harms  remedied by a more narrow injunction that the plaintiffs will get have an injunction i think your your argument makes logical sense nationwide injunctions are obviously problematic from any number of perspective but there is a question of workability of a stay or that is limited to or any limitation imposed on the district court's decision that's limited to the circuits boundaries there's scholarly dispute over whether it should be limited to parties or limited to geographically the organizational plaintiffs here where we define they had standing to pursue this suit sufficient to sustain  injunction served people who are outside of the circuit and people move the asli in seems to me that it might be a better service to the government and to the parties to render a decision on circuit do you have any response to that is that correct well i guess in terms of administer ability of course you know executive agencies if they get a injunction limited to a particular jurisdiction can decide whether they want to voluntarily comply more broadly for administer ability purposes in terms of the harms to the plaintiffs here you know obviously we don't think that they have standing but the state plaintiffs alleged injuries or that individuals within their state will consume fewer will get fewer  public benefits that would flow to the state coffers or that well will trigger you know other problems within the states the idea that there's no doubt showing that in order to remedy that injury you need an injunction that applies to people who live on the other side of the country and and similarly for the for the organizations almost all of the organizations do operate there is one of them that says it has affiliates that it provides funding to but to remedy their injuries assuming again that these people these plaintiffs have standing at all which we dispute one would need an injunction that extends all the way across the country and certainly if you were doing a balancing of the harms even if you thought that they had what about the people who were moving it what if you get benefits in new jersey as well as in new york or only in new jersey but you live in new york through some kind of housing arrangement you work in new york you live in new jersey you're in section eight housing i mean that to me just suggest that there would be a lot of administration would need to be set up if we were to try to limit the injunction the district courts injunction to the circuit and and that would take longer to do that than it would simply to turn to the merits of your standing arguments and other arguments and render decision i think that's unrealistic i guess i'd i don't think that i think that if you senate applies within the circuit there might be a handful of and cases where people are moving around that would have to be resolved but but if you think about the the larger issue you know we would we would have a lot of clarity about the west you know how argument would be that in terms of harm even if a few people rushed into new york from other places to take advantage of things here that is not going to be  rable harm sure and also of course that there would be doing so to take advantage of a stay or more of the limitations on a stay and of course as this court has pointed out on the merits it could turn out that the government prevails everywhere or the plaintiffs prevail everywhere and then you know so the idea that people are going to be moving around a lot for this interim period doesn't create the same problems as saying that they're you know you could make an argument like that in every case and just say ok well it's going to be tricky to figure it out i mean we have here the advantage that the plaintiffs are in fact states and they happen to be the states of the circuit so it's actually easier than usual to craft a narrower injunction again we submit there shouldn't be an injunction at all but at a minimum there are the other plaintiffs as well but if you'd like to make just a closing statement before we hear from the states just as are the other plaintiffs they haven't demonstrated that they have harmed extending across the country standing purposes if you're weighing the harms to you know the indirect effects of the rule going into effect on the other side of the country against the harms to the government that should be a close call all right thank you very much thank you for your argument we'll hear from the state fail for the states in new york city a stay would improperly up and a status quo that defendants admit has lawfully governed public charge to terminations for at least two decades now really it's been over a century but a stay is supposed to do the opposite it's supposed to preserve the status quo it's supposed to prevent that kind of disruption and harm of having very drastic changes go into effect now only to have it all maybe go back the other way if the merits panel reinstate colleagues from the private representing the private plaintiffs are going to focus on why distracting the status quo will cause irreparable harm to the plaintiffs and the public and and why that feeds into the scope of the injunction and i'd like to turn to why destructing the status no your honor you would still have to look at the equities and the extreme level of irreparable harm to the plaintiffs and the public's and the lack of any such harm to defendants but also we think the th circuit got it wrong and that there are at least very serious questions  about the rule being contrary to the law and our board arbitrary and capricious since congress st use the term public charge it has always meant the truly destitute individuals who are unlikely to subsist without relying primarily on the government for the long term not for the short term not for some sort of emergency and it's never meant people who actually have jobs who earn a living who might at any point in their entire lifetime temporarily use any amount of supplementary benefits w point say for a month far worse than what has been don't know what happened afterwards were some regulations which changed that to what i would think would have been a much more sensible than view original law but if you look at the original law it's quite hard to say that what they are doing you know isn't consistent with what there are certain principles you can take out of the original law that do still apply today all the benefits have modernized in some way it still has always meant since the beginning and through till today people who are unlikely to subsist without substantial government assistance in the long term and where the th circuit really went wrong was in two ways in thinking that the matter of b k somehow changed everything and in assuming that using minor amounts of supplementary benefits is the modern equivalent of being in an arms house or being unable to care for years and of course here we're not review of a policeman or injunction we're not getting to the actual merits determination we're looking at the government's likelihood of success and whether substantial questions are raised and you know the meaning has a public charge has changed over time everyone agrees to that not been static and may have been reprehensible or raised moral concerns for some people at the beginning but it's changed over time and it's meaning and administration is committed to the government which has put every story the executive branch over immigration matters why shouldn't the government be entitled to change that meaning or to reinterpret the phrase public charge in focused on people who are truly destitute for the long term not for the short term for example hasn't it in the past sometimes meant that a person's a public charge if they receive housing if they are living in an alms house whereas one of the objections made to the new rule is that it goes from cash benefits to looking again at the provision of housing i mean there are elements that have come and gone in that competed his term over time and i  take it you would say is it part of your argument that the government while it may have discretion and interpret in the phrase public charge is discretional to be as limited by the history of the positions it's taken over time as although there yes we would say that they have some flexibility in discretion here but they have gone so far outside of the bounds of what the historical meaning of this term has always been and how congress has always understood it that this goes past the breaking point of such ambiguity and it's true that arms houses used to be the sort of flashpoint for public charge and we don't have almshouses anymore but it is not the state that that that doesn't mean that it's logical to say that using any amount of these type of supplementary benefits makes you a public charge and that goes contrary to how congress has set up these programs what the benefit granting agencies with expertise have said about these programs and the reality of these programs i mean in it to give you your sense that likelihood of success on the merits is actually very low and so they would need to on the merits which will get to end fairly quickly and to give you a sense i think of just how far past the breaking point this is and why we do not think it's clear as the th circuit seem to think i mean more than forty percent of us born citizens used one of these supplementary benefits between nineteen million seventy two thousand and seventeen in new york city forty percent of the city population is on medicaid and twenty percent use a step and in the plaintiff's states six over sixty percent of people who use medicaid work for section eight in new york city you can initially qualify if you have over fifty three thousand dollars a year in income and you can keep that benefit if you have over eighty thousand dollars a year in income and what this shows is just that these benefits are  from houses institutionalization or cash assistance which is a more modern equivalent things do change but we do have programs that provide basic subsistence to folks who cannot survive without it so changed now he's changed its view not because of his expertise but because of a political difference doesn't make any difference we still have to give deference my question is to what congress struck in immigration law in a very major way and that's not the kind of decision that congress would have silently passed on to the agency through sort of implicit hidden meanings and i mean congress and especially in ninety six struck a very careful balance that used very specific provisions about benefit access and affidavits to support when it wanted to do things about immigrants who are here in the country already in benefits and what it didn't do is it didn't go any further and decided not to go further it decided not to change public charge even though it was fully aware of the history and regulatory practice over that term for over a century and so when congress has set up a very careful balance you know even under chevron we do not say that an agency can just undo what congress has done and they have gone so far here especially considering that congress actually rejected in ninety six a transformation to the definition of public charge that's actually very similar to what they're trying to do here and so i think this is starting to go to a place that is so far beyond discretion that that it is outside of chevron if i can turn to the arbitrary and capricious for a minute even if you put contrary to law side there are several aspects of this rule that are also just arbitrary and capricious  timing stacking system that your honor mentioned is one of them i mean there were a ports to take the twelve month threshold so that agency officers would be using a threshold that exceeds quote a level of support that temporarily or nominally supplement alien's independent ability to meet his or her basic living needs but then the stacking system does the exact opposite it makes it so that if someone is going to likely at any time in their life to temporarily use benefits for just four months but they used three months because they had you know three benefits because they had an emergency or sudden job loss suddenly they're likely to be a public charge and that is irrational agencies are allowed to pick lines that are not always perfect or not always scientific but having picked twelve months as the line between long term and short term it doesn't make any sense at all to suddenly shorten it for no reason at all thank you very much inc you will hear from the organizations good morning your owners jonathan her with from paul weiss on behalf of the plaintiffs in the make the road case i'd like to follow up on three points that were the subject of discussion earlier st the question of irreparable harm to the government there's no showing of irreparable harm to the government here what the they are not can parties to the case because one of the one of the factors that the court has to consider of course your honor is the public interest and part of the public and all that comes in under public interest generally so that becomes not so much irreparable harm but public interest because of the irreparable harm that there are then the government says the interest in the government to be able to govern so that that's where that comes in the question of of the those i don't i don't think that the public interest ways i think the public interest clearly weighs in favor of continuing the injunction but to answer the question your honor asked directly the harm to the organizations as the district court found and i don't i don't think factually this is disputed is it drains them of their resources they're required to expend resources on addressing the fallout from this from this rule it interferes with their organizational missions because it prevents them from doing work that they would otherwise need to do and as a concrete example of this several of these are these are the basis in which you say you have standing to appear and it's the same basis that constitute the reparable harm or they're related to the irreparable harm and suffering that's exactly correct your honor that's exactly correct and as a concrete example of that for example several of the organizational plaintiffs provide legal assistance to immigrants in a variety of ways and they've testified and it's again uncontested that by providing that the rule requires them to expend greater legal resources to assist people with status adjustment applications because they've become much more complicated and much more fraught and as a consequence the organizations are unable to assist other people with asylum applications visa applications defensive removal proceedings or for other reasons so it has a very concrete  it has a very concrete impact on the organizations and it's irreparable because in part because they can't assist those people later on and also because as again the affidavits show a lot of what's going on here is people in immigrant communities are responding out of fear and confusion about exactly what's happening with this rule and what they say assuming we buy everything you say which is a the plaintiffs here the organizations operate without regard to residence and one of the one of the plaintiffs operates in forty nine states in the district of columbia clients of course move from state to state so people who are in new york for example and they're concerned about their immigration status and whether accepting or not accepting a particular public benefit will affect their immigration status and maybe thinking about moving to new jersey would we be affected by the fact that  the th circuit the rule similar plaintiffs after all was only for illinois that one of the two district judges in the th circuit reversed but who originally granted an injunction believe that a local stay a local injunction was sufficient is not something we can consider or no well i can certainly consider it but i submit that the findings here based on the evidence about these organizations and the state and city plaintiffs in these cases is what's most compelling the evidence here is that they they do need and nationwide injunction the other point i want to mention about that is the a p a itself expressed expressly authorizes the court to delay the effective date of an agency action it directs that the agency to the court to set aside on lawful agency action having different rules for issuing to green cards in new york in new jersey is both irrational and as i think judge carney pointed out earlier just a recipe for confusion well there's no doubt the diff differences is le desirable on the other hand if we get to the general desirability the question of the desirability of nationwide didn't junctions and people going to texas or someplace else or here and forum shopping is something that we really have to take into account too don't we well i think you know that the i don't think there's any suggestion of farm shopping here in this state no i'm not suggesting that there is but just on the general question of how we would say harm when we consider a nationwide injunction is against a local injunction aren't we shouldn't we take into account some of the desirabilit nationwide that it doesn't mean diversity that some of the undesirability but it does encourage more in shopping certainly i think the court has to consider those things and it has to consider those things in the context of whether or not the district court here  not sure it's unseemly right i mean i think i think your honor this court has to consider the case that's in front of it the case that's in front of it is one in which the district court entered a nationwide injunction nationwide injunctions are certainly permitted and i think it's consider that the question for this court really is whether or not the district court abused its discretion in entering a nationwide injunction here and that of course was not in the context of there being other cases in other circuits do just want to come back to the harm to the plaintiffs here and the harm to the to the general public again it's completely conceded that there's enormous certainly uncontested that there will be enormous harm from this rule in immigrant communities which which our organization serve and which the states and the cities also serve there's that's that's  by the government it's shown by a range of what does the government characterize it as harm and to me it's a change the government the price argument says that the rule caused hundreds of thousands of non citizens to forego benefits to which they're lawfully entitled the rule acknowledges that it the government acknowledges in the rule itself that the rule will lead to i'm quoting worse health outcomes increased use of emergency rooms increased prevalence of communicable diseases increases in uncommon s care increased rates of poverty and housing instability reduced productivity and educational attainment among many on your cutting from what i'm quoting from the rule itself that's it eighty three federal register and fifty one to seventy so i don't know whether the acknowledges that the rule itself acknowledges that the got in the comments were overwhelmingly in opposition to the proposed rule that's correct although of course that doesn't mean that they were the rule is unlawful by itself that's that's correct but it's some evidence together with all of the other evidence that was in for the new address the irreparable harm that the government claims would be done to specifically legal permanent residents who get legal permanent residency and government that the current rules of nine hundred and ninety nine dollars field guidance are unlawful so what the government is saying is simply that because it is being impeded in pursuing a rule that it wants to implement that it's being irreparably harmed i don't think that's the law and that really would prove too much and anyone who because who gets legal permanent resident status during the pendency of the injunction is certainly subject to the same stringent record painting public benefits that anyone else's they have to have an affidavit of support there are stronger stringent restrictions on the availability of public benefits for non citizens under the welfare reform act and other laws and as your honor pointed out earlier in some cases they're subject to public charge removal and all of those things are the same set of rules that have been in place under the current administration for the last three years and under many multiple prior administrations since at least one thousand nine hundred and nine and very good thank you very much thank you for your argu