good morning ladies and gentlemen before we start i will say for the record that we are accompanied by judge roll singer who is at the federal courthouse in springfield massachusetts but on the video so you will hear her intervene from time to time when she wishes so we are in fact also three here so our st case for this morning is cook county illinois against chad will  of discretion the district court's decision here is in line with chins made by district courts in the north or just your california the eastern district of washington  southern district of new york and the district of maryland other courts in may but can we really think a that the district court be using its discretion and the including a likelihood of success on the merits they have not done so here in terms of the balance of the harms we also feel they have not done that either as as this night circuit in the th circuit as well as now the supreme court has concluded that the balance of harms and the  cons of course that that is what we need to discuss a judge parents have to say one thing that would be helpful to me is for you to tell me exactly who is subject to the public charge provision as far as i can tell you know refugees and family immigrants those who are coming in employment bases and then lottery winners green card lottery winners that's correct or i mean those are the cab the primary categories and none are eligible for a i mean they they are eligible after a certain number of years after they have green cards after the five years that's correct yes so they're in this period the public charge rule as counting against them and they're not entitled to receive standing although i do think the government at least with respect to cook county has more or less conceded standing but but putting that to one side one of the things that concerns me is precisely about this five year look forward that the background law requires you to make because i look down the factors beyond the statutory factors and the way that you're weighing them and i find no empirical evidence in this record to support the type of inference that you're drawing and indeed some of them just seem to be plucked out of out of thin air or like the idea that you should hold family size against somebody because that means they're more likely to become a public charge it's actually quite to the contrary in most countries a large family use is a way that they provide a social safety net  english proficiency to say that somebody who doesn't speak english well today five years out isn't going to be actually bilingual and a more competitive worker in the workforce seems to me at least something that needs support and i don't find that support in this record your honor and i guess i just want to emphasize of course this is a to tell you the circumstances test a bit of the but you can't zero plus zero equals zero so if you are throwing in a lot of factors that you have not supported empirical evidence that that would allow a rational person to see that this individual it is likely to become a quote public charge and i do want to talk about what that means but i short studies for example exemplifying that english proficiency something that is associated with higher unemployment is associated with greater benefits use the low english proficiency and the in the agency made clear that it will consider language proficiency in general if a person is bilingual that would be a positive factor weighing but why does the agency think that people will plug up their ears for five years and not learn any english during this waiting period that the law imposes well your honor i mean you know it is again a series of factors that don't but don't tell me that me let's focus on this one why what evidence does the agency have about the learning curve for english proficiency from a people of various age groups who enter the united states you are i'm not sure there is evidence of that there isn't any but i guess which is kind of cool because if the person is poor in english today but by five not aware of anything in the record on that particular point but already the council can i am glad that chief judge was asking this question because it goes to a question that i have about exactly the passion of the case and what you're arguing a lot of this back and forth seems to your definition of public charge in the statute the definition is whether someone is like two likely time to use one of the specified that said ok i'm so glad you said that because i thought that's what you were saying too and what bothers me is i think you've tried to rewrite the statute using one benefit isn't the same thing in my view taking an ordinary dictionary understanding of the notion of public charge you know getting one meal at a soup kitchen surely does not make you a public charge any more than my neighbor's responsibility if i have dinner over at his house and the way you've done it is actually you could become according to the government's approach a quote public charge in two days if you used six benefits one day and six benefits the next day that way you're stacking months and is that really your position that is not our position at all your honor that's not yours mara to you and that is how you argued it you said if you use two things that counts as two months is it the case so in your brief you say the rule renders inadmissible allianz who are likely to rely on government support for a significant period to meet basic needs i took it to be that that definition which you state in slightly different ways at different points in your brief was your interpretation of public charge in the statute and then the regulation which obviously has a lot more detail than that was your effort to implement in a specific way that understanding of the statute and my misunderstanding is your telling judge what something different i don't believe i am that is our view and i just want to be absolutely clear we are not talking about the use of one benefit for one day or two but if through today where do we see that in the regulation regulation says you have to use more than twelve months worth of benefit to twelve but then you define a month to be one benefit you have you very clearly say repeatedly in your brief that if you used to benefits inside one month that counts as two months but in so it seems to me if you use twelve benefits inside of one month as somebody might who's temporarily lost a job looking for a new job signs the new job six weeks later that person has has used up their entire allotment for the thirty six month period if i can  he gets settled he could be deemed a public charge for leaving just four months of the system correct that's correct and i would like to elaborate so i want to make something clear on this point the agency considered the universe of possible benefits and it narrowed that universe and if we're talking about non cash benefits just three medicaid with exceptions housing vouchers and snap program so food shelter and medical care those are the only benefits that qualify so there could only you could only ever use three only the most important three things that a person is in  basic necessities so if you're talking about someone for four months who is relying on the government for food for shelter for medical care that looks a lot like someone who's permanently rely on or primarily lightly primarily i misspoke primarily reliant on no it doesn't at all and it's a matter of fact the government should recognize that on the medicaid side it's financial lunacy to have somebody forced over to the emergency room who could be very inexpensively treated in advance i worried one of the you may have had a footnote about the coronavirus i don't know why the government thinks it's better for people not to go to the doctor to get a simple test to see if they have become infected with this we hope not pandemic but very serious and the rule excludes emergency medical care but that's the thing you have to go to the emergency room you can you're not going to go to see the doctor you know you can go to c v s in one minute clinic do you want to get into of this at this stage because judge feinerman didn't and i'm kind of surprised at the turn the arguments taking because i would have thought that you were going to be talking primarily about the chevron step one argument that the district court rested its decision about whether indeed that term public charge requires primary and permanent dependents rather then that's crackers it's seems to me that if the district court was wrong about that if public charge also on campuses some kind of like a significant period that's not necessarily permanent and dependence that is significant but not necessarily total that it's a separate question that the district court didn't get into because it's chevron step one holding whether the factors that congress adopted but there is also no doubt that step two was fully briefed in the district court they just record chose not to reach it no one should be surprised even if we were to grant you that that very impermanent use of a very short usage of benefits is not enough to make somebody a public charge well i mean you can see in the rule itself and setting forth this twelve month threshold said no we were going to take a middle ground position but it's not a twelve month threshold i really take exception to your calling it that given your own definition of it twelve months of benefits usage threshold and right which could happen in one month it cannot happen and yes it no it would not your honor well i don't understand that there can only be three month benefits that you could use plus cash assistance a whore but that would not i don't understand how you could get so you go by the month instead of by just a by where do you say that that the rule says twelve months of benefits i'm not sure the exact part of the i don't  hypothetical house for a month so that means for four months you've been relying on the government for or you're expected to rely on the government for food housing and shelter you know there's a gotcha here too because many people in the categories judge karen mentioned are not allowed to work by the government so if a spouse comes in or if a family member comes in they are not very often in the given a green card to go work they're told no you actually can't work because you're not you know we haven't given you permission yet and you're going to say that that nonetheless should be held against them your honor i'm not familiar with that particular hypothetical   really think we need to put those people to one side as for the people who get the affidavit of support there's a elaborate statutory scheme those are in forcible i don't think we're talking about those people but i think this is why it's so complicated i think we might be which is why i'd like you to right help me out here i thought that the people who had affidavits of support i thought that the people subject to the public charged rule were these people that judge what is talking about yes they have affidavits of support or who are coming to support it's exactly like some of these earlier cases where there was assurance to the government that it would be reimbursed for whatever expenditures it made and so there is no public charge whatsoever  the evidence pretty clear i guess i just want to say which end of the telescope we're looking through even if you're right that there's no evidence that the permanency factor that was mentioned quickly by justice holmes in the gig you case isn't baked into the word charge your couldn't be a public charge for a very short period of dependency or use of maybe not even dependency use of government benefits medical care for example people can skip people do skip it in this record indicates many people are skipping it medicaid if they wish later to adjust their status and to avoid having a negative factor on their records so they should be well advised to stay away from a doctor's office no i mean they should be advised to use private resources are they eligible required for paying for it of medical care they get into if they do they were eligible and the sponsor would but i think with the sponsorship the sponsorship provision indicates is that you plaintiffs are here saying that this term has a fixed meaning and it can only appl long term usage because the word public charge if we can get away from you know the heat of the present debate means you're dependent on the government if you're  somebody charge you know you're there is a sense of dependency there's a sense of responsibility and something very brief doesn't count what about through means tested benefits going to snap housing food and medical care so you consider those significant likes so you know going back to the definition in your brief rely on government support for a significant period to meet basic needs your definition your brief implies some degree of dependence so i would have thought that your answer to chief judge would would be that yes a public charge is someone who is dependent on the government even if for supp as opposed to permanent support but what i hear you saying now is that someone who receives any support that even isn't dependent is that i don't i don't need to be and if you want to become something you could forgo is something that 's optional so if somebody can just say well you know i have an earache but i'm not going to go to the doctor because it's going to count against me for my immigration my efforts later to adjust status or they say you know i and living in a shelter but i'm not going to try for section eight because that's you know going to count against me and actually i want to get back to this list of criteria so many of them are troublesome you're looking at things like you know do you have skills certifications or licenses but those things people don't necessarily show up in the united states with and if they are barred from working it's going to be hard for them to get you know a plumber's license or you know a certification of some sort of thing for that matter i just want a couple on that particular point i mean congress required in the statute that the agency consider a person's education and skills sure and not only that people who are adjusting status could be here for a while before they do that so they could develop the skills and that's that if they are not barred from the path to do it you know i mean if you have you as i said legally they have a in multiple languages then that would be counted in their favor so it is wise and thank the fact that one provision of the eight hundred and eighty two act as stablish the public charge exclusion imposed on ship owners and in some cases the immigrants themselves it was not a fun funded by the public and it did not make people charge it was pay our masters how is it different then the other taxes stablish to hundred century did kind of morphed from using public charge to mean charge on the public to gradually being used to refer to people who needed the aid i get your point about it being funded by the immigrant kind of not the public nonetheless as judge rover is pointing out here if you are reliant i mean it would still be a factor or a gauge if you were reliant on this immigrant fund for help getting on your feet it's not necessarily that a sign of any kind of longer term depend what we don't know any of the details about that level of support i mean who was on a one month's worth of support was it non cash or cash we have no you know some about that i've found some about well in any event i mean what we're talking about here and what the rule is saying is if you use twelve months of over you know including the aggregation point but can that be that that's what you think it means because if you're saying that it means that something that specific that that i'm not saying that that's what it means as a general matter  it's been clear from the beginning for me to congress that on a broad capacious congress itself to be its recognize has a varied interpretation not very much not until this rule i don't want to cut off this discussion but your time is almost up yes and i know you wanted five minutes for rebuttal i will probably give you some extra time but if you would like to wrap up at this point it might be a good idea yes you know i think we've covered a lot of ground here i mean again the district court's holding was in the your honour's and they please the court case if led to on behalf of plaintiffs icer with the court's leave i will spend my argument time focusing on the statutory interpretation questions and my colleague mr morrison in his time will focus on standing about public charge someone could be a public charge if they reach primary dependence on government support as a result of poverty poverty and insanity poverty and physical disability there are multiple grounds on which a person could become a public charge whereas popper is a more specific term can i ask you this your primary argument as i understand it is that the district court was correct to stop this analytical process at step one of the chevron framework and i'm going to assume for the sake of this court that the chevron framework is alive and well and that nobody has done anything to it yet so that's what we need to follow the were public charge as we've been discussing and as we have mountains of briefs to show does not strike me as one of those things like saying you need to be thirty five years old that everybody can figure out what does that mean maybe a little all year or part of the year but the the term public charge i think we've established could mean primarily depended on the public so that the public is providing let's say more than half of somebody's support it could mean one hundred percent dependent on the public it could mean that the public is supplementing and it's sort of more like thirty percent maybe at some point if we got down to episodic and occasional uses of public resources just to tide over a brief period of time i'll say down to the ten percent level maybe that doesn't fit but surely there are there's some interpretation that needs to happen for this word isn't there let me answer your question in two ways st the term public doesn't say and here's the definition section that's correct the statute doesn't say here's the definitions actually but we get it from all of the tools that are appropriate for interpreting a statute statutory context including the context that drove me or raised during my colleague on the other side's argument to provision for temporary relief and we get it probably most obviously from the history of judicial interpretation that it happened over a century before congress reenacted the term in one thousand nine hundred everyone agrees that this term has meant the same thing from eighteen everyone doesn't agree as the mountains of briefs you know everyone doesn't agree and there was confusion i mean there was an early treasury regulation where the treasury was trying to give instruction in what public charge meant because people weren't quite sure and different actually cook county was very generous and said it wasn't going to report to the government people who are receiving outdoor relief well california not so generous you know there were differences in enforcement and some confusion so to pinpoint it at any particular point is kind of hard to do well as far as the federal statute is concerned the parties in this case at least the government and the over that time the statute was interpreted by dozens of courts including by the supreme court in one thousand nine hundred and those cases are consistent they reject the determination of public charge status if someone is using transience benefits using most of the things you described would that are anything other than primary dependence on how can i want to ask a question about  really don't understand that point because in the late th century into the th century outdoor relief poorhouses for example are in any kind of benefit and outdoor relief primarily consisted of fuel of food of those kinds of things and in some jurisdictions i mean this was a county to county thing and of the poor laws in some jurisdictions they poorhouses became out of fashion and so they primarily cared for even those primarily in permanently dependant within kind of help so i don't understand the government's choice to give you housing as opposed to giving you the cash for housing why that significant to you thank you your honor this highlights really crucial distinction the distinction between what the word public charge determines who is likely to become a public charge and exactly as you observed in the past institutionalization was the common means of handling and helping poor people who needed government assistance or they were primarily dependent on fifty s well what percent of non citizens who require public assistance still need that insistence in say five to seven years i'm sorry your honor i don't think the record answers a question or if it does i don't know it but this the agency's rule applies to find someone likely to become a public charge if at any time beyond five years or in many decades they will ever accept twelve months of benefits over a thirty six month period because just to clarify your answer you didn't really quite answer my question that i asked before you say that it's part of the public charge definition that in kind benefits can't count but no i don't believe that it's part of the statutory definition that is how the agency has interpreted it in the one thousand nine hundred and ninety and it's not free i mean putting aside questions of whether they adequately explained this shift for purposes of the a p a putting aside that you're simply saying that because the agency for a long time excluded in kind benefits that now they can't count them now i am not saying that if the agency so maybe some of the miki said that but if you're not saying it that's helpful to know as the world exists with the benefits that exist right now i don't think the term public charge could be someone could the public as a whole now i assume immigrants drive on the roads to the roads are paid for by tax dollars we don't tell them they can't drive in the roads so where where's the line there between the things that are targeted to people who have some economic need that's a great question and we as you observed earlier judge barrett we don't have a clear definition of the to public charge from the government obviously the rule explains how they just foreign public charge for purposes of the rule but it doesn't say how they interpret the statute you raise your quote from their brief don't they say actually i mean i mean i find this somewhat troublesome but don't they say that because the statute says in the opinion of the attorney general which they say we should now consider the opinion of the secretary of homeland security might be some issues about that but we'll put that to one side that there's actually no limit the general could decide the people with red hair or public charges and that would be fine that is close to their argument they certainly believe that the statute gives the agent great discretion and i want them to say  and throughout this litigation they've taken the position that charges lay billet and a public charges someone who poses a liability on the government in their reply brief they tried to narrow their interpretation of the statute i believe that was what your honor was quoting  in their briefing in this case they tried to narrow it appeal but that's not the position they took before her wedding in the district court and for another thing that's not consistent with the way the us they're now saying that maybe we can interpret the statute to me in public benefits for an extended period of time but as your honor observed the rule would cause someone to be determined to be a likely to be a public charge after three months that is consistent with what the rule provides and it's hard to imagine that that is what anyone would consider an extended period of time i well there's data what bothers me about this rule is really it's close to it's very anecdotal i guess and if you look at the record and there you would want data to show for example of somebody who is laid off from a job how what's what's the median time for finding a new job because if that's all it is you know people don't actually normally just walk out of one job and show up the next day at the next job that would seem to me to be not so unusual as you would call it a public charges just a brief helping hand that many people take advantage of is a matter of fact and that is exactly what the history of case law says you know when congress most recently enacted the term public charge she ninety six it had dozens of cases in the term in front of it now i don't need to march through them the district court did the briefs in this court do but i can represent you i've read all of these cases and as i read them there is not a single case where a court says yes it is acceptable to determine that someone is a public charge based on short term minimal use of benefits so when someone become a public charge so the chief judge i gave you examples before someone who's fifty two percent reliant on you know eighty percent or thirty percent what i the person would need to receive government assistance before it would be reasonable for the government to consider her a public  charge what i can say is it has to be more than certainly the three months it is permitted or the twelve months that would even the twelve months that would happen if you only used one benefit at a time could you say a word about disabled people because that's another factor that's heavily weighted to get straight someone or you well let me argue some of the amicus briefs focused on that and but the statutory scheme has actually special provisions about people who are but for cause excluding someone for free the reason i'm asking some of these questions i'll just put the cars table is the district court resolve this chevron step one if one did not agree that that was correct  if we thought that this term public charge has enough play in the joints that it requires some interpretation then you have to move to chevron step two chevron step two is not an automatic victory for the government chevron step t has its own set of inquiries and some of the questions at least i've been asking stemmed from my interest in how that works out that's right so chevron set to ask whether this is a reasonable application of the statute and  even more clear that this is not a reasonable application of the statute public charge was enacted with a congress that incorporated it well many times interpreted term even if say would out stephen hawking be deemed likely to be a public charge based on need for lifelong intensive and extremely expensive government sponsored health as i read this all right i think your time is up so maybe you will move along to the next person thank you very much is flint mr morrison i serve you are called that or this coalition may not stand in exactly the same shoes from the point of view of article three standing and i don't like to call it credentials standing because the supreme court lectured us and lexmark that we're not supposed to call it that but zon interested it doesn't matter if cook county has standing this case is properly here that is correct your honor i only need to have one plaintiff who has standing to have the case and no case and none of the cases that have been evaluated the public charge have found that any of the plaintiffs lacked article three standing cook county is a home rule the only home rule county in illinois has constitutional forty to exercise any power in performing any function pertaining to the government including to protect for the public welfare counties health system is one of the largest in the country and pursuant to its enabling ordinance it must provide care regardless of the patient's ability to pay it makes it the largest safety net in cook county does not turn away people at the doors it doesn't turn away people at the boundaries so just primary care physicians could be accessed by somebody my understanding is that it doesn't have any any responsibility it is the largest charity care provider in the region and it's a good thing that the health system doesn't turn away people at the borders because as you noted infectious diseases like coronavirus know no borders and the key to effective health care is diagnostic early diagnostic treatment but what you need for really that's that's i think a point it's cheaper to do the early diagnostic treatment than to do the back end cure you know in the emergency room which is why i think the government's argument that you're actually asking for more money to be spent when the purpose of this is to save money it is not repair a cli well founded well at your factions out of interest point let's say that we agree with you that there's an article three injury can you address the argument that ever made in its place about zone of interest well the zone of interest is not especially demanding task particularly when the a p a is involved the plaintiffs need to only arguably fit within  systems state agencies and other organizations that provide public assistance to aliens in their households will suffer financial harm as a result of the rules implementation and then suggest those hospital systems public assistance agencies and local governments are not within the zone of interests to challenge the the shift from the federal government to these other agencies and in particular with respect ice or it has one hundred different organizations spread throughout the state of illinois its core mission is to provide health and social services to the immigrant residents of illinois it is had to shift over one hundred thousand dollars of resources staff time over time to address the effects of the of the new rule and d h yes has not challenge that number you're correct your honor in the record the only evidence is the harm to the plaintiffs the government put no harm into the as to the government  deliver medical services let's say that through cook county health system in a proactive way versus having to deliver much more expensive services at the backend that is it is a one of the various harms i mean county some others that you're relying on well your honor cook county has three different arms there's going to be more expensive emergency care there is a lower reimbursement because now people are not going to be taking the chilling effect of the rule is not just that there are people who are eligible for the benefits there are people eligible for the benefits who will not take the benefits that is the concern here it's that and one thousand nine hundred and six when the welfare laws were changed eligible people who were entitled to medicaid reduced by three percent and those entitled to snap reduced by thirty one percent it is the predictable effect of this rule that people that are eligible for the benefits children of family members spouses because of the fear of the rule will not accept the rule and so another one of the harms is that every time you reenroll or disenroll it's another administrative burden to cook county to achieve that and then of course the charity carries the shift that when people no longer have medicaid to provide them with health insurance county's largest private charity care will have to now come out of its pockets because if it has to do that under its naval an ordinance would have you would have to absorb  thirds of the colts you know getting current events we can easily measure the cost of outbreaks in areas where large groups of citizens refuse to vaccinate for instance within the ultra conservative or rather ultra orthodox communities in new york and certain communities in california  harms would have her and this falls very much in line with the census case where the government argued that it would be inappropriate for a non citizen to fail to respond to a census question about citizenship but justice roberts indicated it's the predictable e if it's unlawful we're going to have a chilling effect of people when we ask them a citizenship question or when we tell them that the possibility of using benefits could harm you and it's an untenable choice to make someone choose between accepting health care or their immigration status and that is the chilling effect that this is on the use let me try this i think you're certainly answering then some why there is injury in fact from this but if this regulation if you if co hospital cook county itself actually because there's housing there's you know other benefits the food depository and so on is in there the government is still the federal government is still relying on cook county and its counterparts around the country as a partner in this overall effort to deal with a part of the population that may require some assistance from time to time so in that sense this regulation couldn't exist without relying on you in part and which is why i think you may be brought into this zone of interests i don't know that zone of interests means it has to benefit you it's its you are part of the system though we are we are an intentional part they ok well i think you're out of time a so thank you very much we will now hear briefly from has always meant since congress st noted it and eight hundred and eighty two dollars has always meant someone primarily dependent upon the government for support and of course judge bear of course that definition has to be fleshed out and i think that that's what we have seen the courts  charge that has always been clear that if someone primarily dependent on the government he took the fact that the courts have of course had to flesh that out to mean that d h has has the authority to expand that provision beyond relationship between the welfare reform act and the immigration law and the timing and of the affidavit of support and the rendering and eligible for public benefits basically pretty close correlation to the same people who are now subject to the public charge rule so i think that is true and we think that it strongly disfavors de mint for the following reason it is true that congress in the welfare reform statute generally made non citizens  benefits but it did not pursue that goal at all costs and it said that certain non citizens five years after becoming lawful permanent residents are eligible for the benefits and i just want to emphasize what i think is sort of a the more discretion d h s s has under the logic of this rule to exclude that class of nonsense at the outset and i think that the two thousand and two farm bill is actually an excellent example of this dynamic this in the welfare reform statute of course congress five years into the pathway to citizenship are entitled to receive food stamps now under the the logic of my colleagues argument this morning that decision in two thousand and two in fact gave t h s dramatically broad new authority to exclude that class of citizens at the outset because they are likely to receive food stamps at some point which are and that cannot be what congress had in mind and so you would say just there's a logical contradiction between saying you are legal resident and let's imagine that at some point you even get citizenship you will be eligible for all kinds of benefits that point so what i mean you're saying then that well of someone who is subject to the public charge will who you know later on is likely to become a full citizen that's a has a citizen spouse or something like that and might at some point even post citizenship when there is no restraint on means tested benefits you're saying that while the logic of d h s s will permits them to say hey you're likely to become a public charge seven years from now right the logic of d h s s rule is that the the more generous congress opts to be with respect to providing a safety net for certain non citizens who have been congress intend to allow to adopt the interpretation that it has a right and one factor that goes into that it is just the scope of the change and after our one hundred and forty years in which this has always been interpreted narrowly in the face injury would be that it had to use the same definition of public charge that it has used for over one hundred years for a few months later pays the government back for those then if it isn't she still considered likely to become a public charge based on the plain language of this statute yes that's right and that's another reason why we don't think that the rule can be reconciled with the actual language of the statute that congress passed and the decisions that congress made it in ninety six that is someone who we know that someone who has  few few points i would like to make to some of the most recent point about congress of course congress has the authority to change the definition of public charge and it has never defined the term that the listener a little absurd the example we were just talking about if a person has a sponsor and they use these benefits and every last cent is paid back the d h s s is still considering them the public charge you know your honor they are not in fact if if you've paid benefits back and received paid them back that's a factor that would be considered if if they're looking for right it's unlikely that someone is going to use benefits i don't think they're often paid back but if someone is likely in it's the terminations you are likely to pay this back then that would be a heavily weighted factor and that's a different issue actually this court has had cases where the government has not to just keep people out but i would i would keep in mind of course to enforce these things by bringing suit is not a time consuming expensive process if we know ahead of time and you just knows ahead of time a person is going to use benefits for a significant period then what's a significant periods as we you know if it could impact i'm not saying it has or is that the separation this is the interpretation the rule has provided that it will be four months but that's again someone who's using the got relying on the government counsel is it your position that you've been generous and defining it as three or four unfettered discretion provided you know of course is subject to rational decision making an arbitrary caprices this is why i thought you argued that in your brief i understood your brief quite clearly to say that the use of the term in the opinion of the attorney general which sure then how they i mean i guess you know so there's an academic debate about whether chevron type step two is distinct from arbitrary and capricious review i guess what i'm asking you when you keep kind of folding back into the regulation but what i'm asking you is could you under your interpretation of the statute is it the government's position that you could define it as one month of so i mean it's possible but i don't know what the russian and i mean we don't seem to write like you really you really do think you could interpret public charge that way i mean i can't we're not here talking about that yes what are we trying to understand your understanding of the look i see this case you know there's the step one question the government reads and then there's the step two question which is have you interpreted the statute reasonably and then beyond that there's a question of has this r reasonably implemented your interpretation and i guess what i'm asking you is about that step two i see what you've done here to implement your view what i'm asking you is do you think you have even broader discussion than that but i guess the short answer is we have know what you mean i mean there is there is some areas in which executive authorities have virtually unlimited discretion i can think for example in the immigration area itself if somebody is trying to escape the one year period of time to apply for asylum the board decides whether there are extraordinary circumstances and we say that's for the board we're not going to decide whether they define that right or not and so i've had the question you know do you think this is one of those statutes that the attorney general can define public charge any way he or she i'm not you know so one might have to write that and you also must be arguing that the time periods just signed this regulation are significant enough and the amount of dependence in this regulation is significant enough yes and if we could just snap benefits you know maybe it would be medicaid for a couple of months sure it could be a week of snap benefits without any kind of one month right and then you know we've discussed you stack it up right but i guess the question is when we look again at congressional intent look at the nine hundred and eighty six policy statements with those lines ignoring where congress says we don't want to the country to rely on public support we let me i can't resist just saying this the of course congress said that but then there's the question what is a rational way to reach this it's well established that if children have good nutrition they do better in school they learn better they are more likely to become productive citizens and productivity increases your one thousand studies that show that so if this rule says no we're going to have children  experiencing hunger pangs all day in school because their parents don't dare put them under snap that it's pretty irrational step if you believe the purpose that you just articulate if you take it congress is intent which was that an admitted to the country provision which says look if you can't get a sponsor then you're an ottoman you're automatically a public charge and that sponsor has to agree to pay back the snap benefits that are paid so congress is clearly concerned about aliens receiving even those basic snap and other clear that if you only consider disability if a person is unable to work or require medical care so again will require medical care that could mean that your diet i don't mince at the government's expense i mean could mean you're a diabetic and you have to get your insulin from the government or it could mean that you know are hiv positive and you need to get your randy retroviral drugs from the public and assume you don't fit within one of the exceptions then yes you will not be qualified under the rule because you are relying on me because you're disabled no no no because you are