honor michael mancienne for the state of california will be dividing our minutes fourteen minutes for the state eight minutes for the reagents an eight minutes for the individual plaintiffs mr davidson will be arguing for the regents and mr rosenbaum for the individual plaint hand for the united states i'd like to reserve seven minutes for a bottle the rescission of dhaka was a discretionary enforcement decision that the i and they did not in any way constrain acting secretary decided taking into consideration both the texas litigation had invalidated the similar dapo and expanded docket policies as well as the attorney general's opinion that dr likely would and should be invalidated as well that i think secretary concluded that doctors should be rescinded that rational enforcement decision is committed to agency discretion by law and then event it was not arbitrary and capricious or otherwise i'm awful but if i could start with the overview of the argument your honour's enforcement decisions are committed to agency discretion under heckler versus cheney that is true both for broughton foresman decisions and for the decision to enforce just like the decision not to enforce is committed to you can see this question by law likewise the fact that this is a broad and forcing decision rather than a narrow enforcement decision is also subject to hackler heckler itself was discretion that if there are any constraints that congress has imposed on them so if while enforcements question is normally not reviewable if congress imposes standards already even the agency imposes constraints on itself and the n c exceeds those constraints then there can be a review what footnote for said in a heckler in the court reserve judgement on the question is that it is possible that if an agency acts based on the belief it doesn't have jurisdiction or if it otherwise so refuses to enforce the law that it could be viewed as an abdication of its responsibility to enforce the law that could be viewed potentially likewise as exceeding the constraints imposed on why is the situation because there is a critical differen jurisdiction to enforce the law and agencies believe that it lacked or section not to enforce the law when an agency doesn't enforce the law there is a risk at least of potential risks that it can all discretion and lead to the advocation of the responsibility for the law and thereby exceed the constraints imposed by congress even the last administration recognized this in though we'll see opinion when they refused to extend d vigorously if it decides to have a zero tolerance policy even if that decision is erroneous in the sense that nothing required to have a zero tolerance policy that does not mean it is extended the constraints on its discretion and so again i think the important to understand what the point of footnote four of heckler was it was laying out and this is clear both in the footnote itself and the text becoming the footnote it is discussing how there are constraints on agency discretion there are simply no constraint in the eye in a on the agency's decision simply is no way to argue under heckler either the tax or footnote for that the agency exceeded the constraints on its discretion when it eliminated daca and that is decisive under hackler the  d right and i think that there are misreading those cases and i think if there are two points to make about that first again heckler itself was a broad categorical policy not to enforce so we know right then they're that they have to be making a mistake somehow and if the what the mistake they're making if you look at the d c circuit case law if you look at a case like for example brock there is a fundamental difference between whether the enforcement decision itself because it viewed the statute not to cover their conduct and what the d c circuit said was two things as to the enforcement decision itself that was non reviewable they would not second guess the decision not to seek and force me even though that decision was based on my broad is the legal rationale itself could be viewed as an interpretive rule that if it had been said outside the context of enforcement decision everyone recognize it was at least potentially reviewable and the fact that had been put in an unfortunate decision recognize about all those line of cases is what they're talking about is whether the rationale is reviewable not the underlying decision and this is clear from brock because the the court actually differentiated between the two it's also clear from crowley because the plaintiff there wasn't rationale the agency gave for denying the waiver and that's why crowley talked about in what circumstances you can view the reasons given for an in force instruction but crowley did not hold and could not hold that you could review the distinction here so i don't think their attempt to latch on to the benefits that attach to deferred action changes the analysis shot or deferred action first and foremost is a policy of agency exceeds its discretion that congress has given it and that is why the fifth circuit held in texas that docket was reviewable because they held that that scheme was that sorry that doc was revealed all the reason they adopt a zero tolerance policy that does not exceed the constraints on this question they might have been wrong that they had to do that if they adopt that policy but they are not acting illegally by happened that policy you need is perfectly lawful to have  circuit held with respect to dop a there's a fundamental difference when you're asking whether an agency has exceeded the constraints on its force once question between not enforcing the law and enforcing the law i don't think so your honor so their primary example that they have articulated for why there's a difference between dop and dhaka is they say that dop a there was a path to citizenship path to lawful status and that's not true for doc and that's wrong for at least three and the fifth circuit noted on pages one seventy nine two hundred eighty of it's opinion so their own distinction doesn't even work for dop itself the second is the district court and the fifth circuit struck down not just stop but the expanded docket program the expanded doco program the only difference between expanded off and regular dhaka was the age limit and the residence requirement fair enough your honor let me just say this it's apparent that the case that both the district court in the fifth circuit thought that the two were so similar that it didn't require separate analysis and even the last administration when they went to the supreme court and sought supreme court nature for the rationale given is not a permissible exercise of enforcement discretion but the more fundamental point here your honor is the decision here by that the secretary does not turn on that and i think that's a very important point what the the secretary did not say that she was getting rid of doctor because it easy illegal and she must do so what she said it's critically different is that taking into consideration the attorney general's opinion that it is unlawful and the fact that the texas litigation had struck down similar policies she should get rid of docket that is a quintessential exercise of enforcement discretion it is a decision that this policy is of sufficiently doubtful legality that she wanted to get rid of it and she thought that she should get rid of it that doesn't turn on whether or not the attorney general's right or whether or not the fifth circuit is right and law enforcement agency like the department of homeland security is perfectly entitled to decide that it does not want to have a process called discretion policy that might itself be unlawful this isn't a litigation risk like you might have with a private party where you have a private party who wants to do what they want to do unless they get unless they get caught and get sued this is a law enforcement agency who has taken an oath to obey the constitution and they don't want to have a process called discretion policy of questionable legality it's not a question of trading one lawsuit for another it's a question of an agency saying we're not going to have a policy that might well be illegal that is a perfectly rational thing to do with and then this is an arbitrary and capricious challenge they are not saying time we have to decide an equal protection clause challenge in this case as well is that right yes when evaluating the preliminary injunction that was granted in this case i know that the plaintiff did not move on equal protection grounds but that is part of their complaint and we do have to decide that question in this case if we were to evaluate whether the district court correctly granted the preliminary injunction what if anything can we look at in terms of an equal protection challenge i don't think this court can look at the equal protection challenge for purposes the p limited to the motion to dismiss you have any authority for that off the top of my head no your honor but there is a pretty different procedural posture we didn't have the opportunity for example to see whether their allegations that they have they've put in their complaint would rise to the level that's necessary to meet the higher standard to get a preliminary injunction fair enough but you would agree that it's in the complaint and the case all i've seen says when we evaluate a motion for a problem or injunction we are limited to what's in the complaint you can't raise some other some new constitutional argument in the in the motion because you know of any authority that says we cannot consider something even though and i'm asking the plant a lot of questions as to why they didn't raise it protection at this stage but i know they disavowed it in their motion for a preliminary injunction but you know any authority that to have facts and evidence so even if you stipulate that what they pled might have been enough that's not necessarily enough to prove it and they didn't put forward declarations that input then for any evidence so at that level it seems to me that would be procedurally improper to reach beyond that challenges to select of enforcement in the immigration context are just not permissible as a general matter because the normal discretion that you have and for example selective prosecution claims in the criminal side are aggravated in the immigration worse that what they're challenged let me put it this way in a a d c you actually had conceded facts that the government was treating one set of people worse than another set of people on the basis of first amendment protected activity and even that wasn't prosecution claim and a discriminatory motive claim to a neutral policy if anything that distinction comes in our favor because it is even i know comes of this not part of the record but has the government made any decisions with regard to the d c court suggestion that you could go back and redo the recession memo not that your honor we're actively considering it but we have course think that the duke memo is by itself sufficient and since we've been enjoined and we have an appeal is right we are we're here defending that there was no well see memo at all for daca the doppler memo says that there was an oral advice that was given but the second of course is that the attorney to the well see is within the department of justice the attorney general whereas in with respect to dhaka clearly it's gone into effect yet nowhere does the acting secretary give any weight to that consider reliance interests particularly with respect to a policy that on its face was expressly temporary that expressly convey no rights and expressly acted for two year periods in those circumstances it is eminently rational and certainly not arbitra for the agency decide that given the serious concerns about legality it's going to rescind the policy and i would point your honor to the fact that the doc got policy doesn't consider cost at all there's not one word in the doc a policy about what cost there are with potentially allowing seven hundred thousand illegal aliens to work in this country despite the fact that there's an act of congress that says they're not supposed to work there's not one word in dhaka that considers whether it's legal despite the serious concerns about its legality so if their view of i think they're similar but they're critically different from what they argue which is why they are stationed with difference one is there just as i said as an abstract matter and agencies entitle to say that if there are serious concerns about the legality of a program it doesn't want to aspect is the attorney general had concluded that doc doc was illegal that in itself as long as it's a rational decision is a rational justification for a law enforcement agency to decide it's not going to maintain a that the chief law enforcement officer of the country has decided is legal now the litigation risk piece of it is that's all the more true when there's an imminent lawsuit coming that's going to make exactly that argument and is likely to succeed because it's being brought in the same forum it already has control and present on these issues those are the two aspects there they are conceivably quite related that there is a concern about legality and it's likely to be vindicated in the court but both of those points are different from their argument which is that it was a pure decision that easy legal therefore it must be rescinded that is simply not what the letter says if i could reserve the balance of my time good morning and may please the court the name is michael manning and i represent the state of california and i will be dividing argument with mr davidson and mr rosenbaum if it pleases the court we plan to start with the review ability issue and then move on to the a p a in the preliminary injunction mr davidson will pick up on those issues and mr rosenbaum will address the specific constitutional claims raised by the individual plaintiffs as to both review ability and the merit i think the key feature of this case is th defendants based their decision to terminate that important program on the asserted legal conclusion that docket is unlawful and this court can and should review that conclusion under the a p a and hold that we're likely to succeed on our claim because it is been adequately explained and incorrect now i think what they did in the rescission memorandum is that they told the courts and they told the country that our hands are tied by the law that we really don't have any option other than to discontinue this program and if they're going to frame the decision in that way then they can't turn around and say that the courts are barred from reviewing that legal conclusion and untie in their hands if it's incorrect now you heard from my friend a moment ago he started and ended his presentation with the point that this was a discretionary decision in their view that's just fundamentally incorrect when an agency says that it lacks statutory authority to continue a program or to take some other action it's not making a discretionary decision it's saying that the law deprives us of discretion it's a non discretionary decision and that is just not what seven zero one eight two were cases like cheney or l we are concerned about what do you do with the fact that the memo with the sessions letter didn't mention litigation gris your honor it mentioned a prediction that the fate of the dr program might be similar to it only after it asserted that the program was unconstitutional and based on a lack of statutory authority and so we don't think that an alternative litigation risk analysis or assessment can be reasonably in the memo but even if it could be it wouldn't affect the review ability or the merits analysis here because as judge bates explained in double a c p even an alternative litigation risk assessment is in tangled with the primary just by adding on litigation risk rationale like that the contrary the what if in the letter from the attorney general he said i think we should dissolve docket because i'm uncomfortable with it i think it is inconsistent with separation of powers if that was the reason would that be enough to trigger jurisdiction so i think that these questions turn on the particular language and i wary of conceding any hypothetical because that might be the next case but as you've described it i think that that would be asserting a legal conclusion just a different type of legal conclusion that it's unconstitutional on a separation of powers theory and if the acting secretary did what she did here which is essentially to adopt that legal conclusion and based her decision on a legal conclusion then yes it would be analyzed similarly that's a question that the courts are eminently suited to review just like the question here about whether daca exceeds the statutory authority of the agency under the i in a but to be clear that the g said i think we should dissolve docket because i don't like it then that would in your view not be reviewable but if you said i think we should dissolve dhaka because i don't like it because i think it's inconsistent with separation of powers than that those extra words would trigger review ability i think it does make sense to focus on the rescission memorandum as well because they say that that decision was made by the acting secretary and so it would depend to a substantial extent on the reasons given by the acting secretary i understand the hypothetical if you're positing that there is some sort of policy rationale for terminating daca and that would be analyzed separately now our starting point would be that there's a strong presumption in favor of review of agency action and so you have to look at whether there is manageable standards to apply and they would have a stronger argument in that case that there is no law to apply there we might argue the other direction depending on the circumstances but even if a court ultimately found that type of policy decision a truly discretionary decision to be on reviewable the virtue of that result your honor is that then the agency would have taken responsibility for a voluntary discretionary decision in a way that they have so far refused to do here they would be standing up and telling the country that we have decided to terminate this important and popular program because we don't like it and even if that weren't reviewable in a court of law it would be reviewable in a court of public opinion and there would be political accountability which is one of the core purposes of the a p a but that purpose is not served by what defendants are doing here which is to say that our hands are tied by the law but then to turn around and say the courts can't review this conclusion that is just inconsistent with seven zero one eight two and fundamental principles of administrative law so i heard opposing counsel today s basis for treating this as an invalid decision because cases going back to cherry indicate that agency action based on a flawed legal premise is invalid there's also a threshold progs problem that judge bates addressed in the in double a c p order which is especially when you have a situation where an agency is changing its longstanding position the a p a requires it to explain why so they've told the courts in the country for half a decade that docket is a l ul policy and they've offered very detailed explanations of why that is so if they're going to change their mind on that position a position on which a lot of people relied in deciding whether or not to apply daca status they've got to explain what they're doing they've got to show their homework and they haven't done that here in the rescission memorandum or in the attorney general's letter we have essentially one sentence and the rescission memorandum of explanation and a one page almost entirely conclusory letter from the attorney general they assert that this is a program that is statutorily invalid but they don't explain what statutory provisions they think are violated they assert that as essentially this program is foreclosed by the fifth circuit decision about adopt in the texas decision but they don't in the memo or in the letter acknowledge material differences between the two programs and explain why they think the fifth circuit decision controls they assert now that docket is unconstitutional but they cite only the texas rulings which expressly contain no constitutional holdings and they don't even acknowledge or address the thirty three page oh l c memo which included an extensive discussion of the take care duty and established that this general type of deferred action program which has been  hallmark of immigration enforcement discretion in this country for half a century now do us the memo concluded that these are lawful programs when operated as docket is on a discretionary case by case basis as a matter of prosecutorial discretion so they needed to explain those things for this not to be an arbitrary and capricious decision under the a p a they've done none of that and they're briefing in litigation can't rescue a decision that itself did not offer that explanation your honor as to the core question of whether dhaka itself is lawful as i noted i think that they made this presentation forcefully in their brief in the brewer case the conference broad authority on the secretary in the department of homeland security and that includes the authority to establish national immigration enforcement policies and priorities and one way that the h s and its predecessor agencies have done that for half a century is to establish broad programs that guide the exercise of deferred action and other similar forms of discretionary immigration relief for a category of  a substantial number of cases and they have that is a form of enforcement discretion that has been acknowledged by congress that congress has never  disapproved it is deferred action itself is a commendable practice the supreme court has recognized and it's well settled that that's within the thirty of the department of homeland security and there are it regulations promulgated under administrations of both another reason why their decision is simply invalid counsel let's say i agree with you that docket is legal and let's say i agree with you that these kind of roving explanations in the past two years are not entirely consistent kind of a constantly moving target tell me how i get around the supreme court case and when i called the ele which has some i think some tricky language for you to overcome my main concern in this case from your position is just disability so how do i get around the early i think the starting point is perhaps where i began which is that b l e is about a type of agency action that had found to head that the court had found to be traditionally unreviewable and a decision that was made on a wholly discretionary basis and that's fundamentally different from what we have here we don't think that this action does fall into the cheney framework or to any other tradition of an review ability and i can address that but even if you were treating it under the cheney framework this particular decision was based on a non discretionary of determination a determination that the agency essentially lacked jurisdiction and i think that's where we would get to montana air montana air is consistent with the elete because what it recognizes is that yes if there is some discretionary determination that an agency makes and it's accompanied with some discussion or legal analysis than if that's a traditionally unreviewable type of action that's not enough to overcome the presumption of review but if it's made on a non discretionary basis then that passage and believe that they like to refer to it just doesn't have any application here and of course is not a case that was specifically about the cheney framework and it was decided three years before this court decision in montana errors so so that is an exception that's binding precedent within the the cheney context regardless of what the court said in b l e so you don't think there are any areas of the law where regardless of the explanation given for why an agency is changes decision that there are essentially well i think that there are certain explanations that might be an reviewable in one context and not in another because you're operating within a traditionally unreviewable zone but i think what cheney establishes is that if you have a purely non discretionary decision where the agency says as it did here that our hands are tied and we have no option other than to bring this non enforcement or to not bring this in portsmouth action or other than to discontinue this program that's just not the type of problem that seven zero one eight two is concerned about and you know if i might respond briefly to my friends framework that he offered addressed in their supplemental brief to the extent i follow the argument i think that what they're saying is that there may be some type of embedded statutory interpretation that a court could review but that it couldn't vacate the rescission memorandum even if the agency got it wrong on the law because that's a enforcement decision and i think that there's three problems with that argument the first is as the court noted this is just we think fundamentally different from an agency's decision not to enforce or to enforce the law against particular parties in a particular case second i think that that argument that they spun out for you is foreclosed by montana area because there you had an individual non in force meant to station and yet this court did effectively review that decision and it sent it back down to the agency for it to exercise its discretion freed from its mistake and under understanding of the law and i think the final point is i don't think there framework is really coherent because the reason that a court can review this legal ground is because it's the ground the agency gave for making this decision that follows from chinnery and if the court concludes that they got it wrong in the law then it should go back to the agency for them to make the decision and knew it just doesn't make sense to say that a court could review the embedded statutory interpretation but then is powerless to actually have any remedy it is powerless to vacate this decision which is invalid because of improper legal conclusion your honor i see that i've exceeded my time perhaps if i could unless the court has further questions for the states that it's ok thank you very much  please the court jeffrey davidson covington and burling on behalf of the university of california plaintiffs i'd like to start where my colleague picked up on the defense of the district court's injunction as you correctly said the injunction was correctly entered because the undocking it was based on an incorrect conclusion of law and it's the quintessential role of the courts to review those conclusions of law and make sure that agencies are abiding by the law but i'd like to talk a little bit about the litigation risk rationale that the government has have to balance whatever litigation risk there might be against the program mattock objectives of the policy and to determine whether that risk might be worth taking a rational litigation risk assessment would also have to consider whether there might be ways to mitigate litigation risk such as by adding discretionary elements to dhaka or by putting it's your notice and comment and that kind of litigation risk simply cannot be found anywhere in the record i would also note that the government seems to hang it textural basis for saying that there's a litigation risk analysis on a single word in the rescission memorandum they say that because the acting secretary said to the docket should be set aside as opposed to must be set aside that embedded in there is some kind of policy based discretionary that occasion risk analysis and with respect to that position it's just too heavy of an analysis to hang on the single word should legal and constitutional defects that the courts recognize as to do it therefore it is likely that potentially a man let occasionally deal similar result so he's saying it has the legal and constitutional i think it is your honor i mean she says in view of the fifth circuit litigation and the attorney general's letter it's clear the docket should be set aside so she incorporates it by reference now if the court were to conclude that it's vague the rationale that was given for the rescission under the cherry line of cases cases a vague rationale that can't be pulled out of the record that's reason by itself to set aside the policy but let me let me turn to a second reason why the injunction should be upheld the rescission is also arbitrary because of up the government failed to consider as justice kennedy said in the ins you know motorcars case when the government reverses a prior policy that's been a fact it needs to consider the circumstances that underlay that policy and  needs to consider the interests of the people who are affected by it the record here reflects not one word of consideration about the welfare of the seven hundred thousand dockery scipio it's not one word of consideration about the welfare of their families including their two hundred thousand u s citizen children not one word of consideration about the schools they attend their employers or even the national economy and indeed the record doesn't even consider the government's own purported support for the policy objectives of the program as the president's tweets after the rescission indicate and so chris essentially the government can't set aside a policy the benefits this many people without even a single word of explanation for why it's doing so well the question may be different for policies that are written on a blank slate policy is the reverse prior policies on which so many people have relied are different and they provide the court with a hook for judicial review as the robins versus reagan case in the district of columbia says it says the even if the decision were discretionary if it rested if it were brought on a clean slate when it's reversed the prior policy that provides a legal folk law to apply to evaluate whether the agency was rational in its rescission i'd like to take a few minutes if the court has no further questions on the injunction to address our cross appeal on our notice and comment claims the government's failure to put the narrowly limits the agency's discretion and this court has further said that the critical factor is the extent to which the challenge directive leaves the agency free to follow or not to follow the announced policy in any particular case now here the rescission is categorical it does not leave the implementing officials with discretion about what to do in any particular case it says that if you file a doc application on september sixth it will be denied if you file a renewal application on october right to this question which is you know let's suppose you know we think the docket is a general policy statement that didn't need to go through notice and comment it did have discretion in each individual case but let's suppose that's not right and that it did have to go through notice and comment rule making still the d c circuit has been i think the consumer energy cases is probably the best one on this even if there is a procedural infirmity in the rule itself the research of the rule still has to go through notice and comment place the department of homeland security's why discretion with respect to individual cases can still individual case by case basis decide to differ why ranging discretion while the agency does have what i would call ad hoc discretion in any particular case and that type of discretion is typically not exercised if you have put in an application with the government typically comes in the course of a removal proceedings but the standard in the circuit is not whether the government loses all of its discretion it's whether the agency's discretion has been narrowly limited and here the government has abolished the only realistic programatic way that this says that there's a way that the that that type of decision is supposed to be made and that's by putting it through notice and comment rule making one further note on the injunction which i think is very important your honour's the government has not said one word to dispute the overwhelming show and that we made in the district court of irreparable harm the balance of the equities for the public interests in mind is that overwhelming show and the district court was amply within its discretion to find that there was a likelihood of success on the merits and to balance all of the equity in favor of the nationwide injunction at issue here and i see my time has expired so if it's ok with the court i'd like to hand it over  good afternoon your honor was mark rosenbaum on behalf of the individual plaintiffs judge owens i do intend to get to your protection arguments if i can with with your indulgence i'd like to spend the bulk of my time on the substance of due process issue the government in its presentation to you this afternoon said not a single word with respect to the individual recipients the current recipients whose lives will be irreparably injured if in fact the rescission takes place so as to cut them off from continuing opportunity to renew their status of daca the recipients in this case your honor a doctor a lawyer clinical psychologist and medical middle school teacher a special ed teacher and a law student then community organizer are building meaningful productive lives of service to our most disadvantaged and under served communities as a consequence of the fact that the dhaka program created core liberty interest interest to remain in this country interest to build lives to pursue one dreams interest of dignity in terms of coming out and no longer being invisible that were in fact enabled precisely the interests of the government in setting up the doctor program in the first place if in fact these interests are stripped as well as the interests of hundreds of thousands of other dreamers who also came to this country as children if they are stripped it did not have to process in two ways first substantively and second by the cruel bait and switch method which treated them first of all by the government as disposable and then as bargaining chips i want to talk about four particular factors in place that this court doctrine and the supreme court doctrine specifically recognizes that's required in determining whether or not liberty interest exists first the doc a program began it began with a promise a promise that was widely publicized as we have presented in our complaint widely publicized based upon a shared understanding between the government and between perspective doctor recipients that interest which the doctor which the government communicated publicly was of interest that said that if if we choose to recognize that you get doctors status then afterwards you will be able to renew that status so long as you play by the rules the government never said that at the end of two years we can take that welcome mat that we put out from you and use it as the road that we're going to pull out from under you the government never called dreamers to your dreamers dreamers at their own risk and that's because the arrangement that the government set up in this particular case was one that was narrowly and specifically tailored to what its interests was an interest in bringing individuals out from the sha so that they could be productive members of this insight precisely what has taken place in these particular circumstances the government never said in fact it ran its its orientation programs it ran its  its programs on introduction with respect to these individuals that they in fact would be subject to renewal the memorandum itself says that they would be subject to annoy that it with for that productive young persons who who could not the argument was made here's that's here's what the government did not communicate the government never said to individuals the government never said to individuals you can have this as long as the program exists you should bear your own risk you take your own account of what in fact takes place when you're wet when you're weighing whether to join because what the individual for asked to do was to come forward turn over all this information about them and the government calculated properly that if they said this interest could go away this interest could go away at the flip of a switch that in fact they would not get the numbers that were taken and considered a second factory are look at the substance of what was being presented here in these in these descriptions what were the doctor recipients were told you go to college you get a job you can hire people you can become a doctor you can become a lawyer you can become teachers you can form relationships with individuals as part of those professions of the program itself that's the way that the program in fact operated with this notion that even though they never said judge were law we can take away this program tomorrow they always said you can build these sort of interest not only will not only have these sorts of professions not only go to college not only higher job you can build families families and a two year commitment having children is not a two year commitment they said that you could walk freely but they did not say walk freely with the risk that by doing so you are handing over the keys to effectively remove you from the country this court is required pursuant to june geneva towers for eighty nine page four ninety the orloff case the wedges ledges case the six which gets me to the phone point your honor and that is what did the government do look at footnote thirty eight that of our complaint that deals with the way this in fact was operated the way it was operated that ninety nine percent of all doctor recipients were in fact renewed what does that tell you it tells you not just the reliance of the individuals themselves it tells you that the government itself understood that this was a program that once you were qualified it you would be able to be permitted to continue to do it which brings me to the fourth point with respect to that if what were the statements of government officials acting director johnson specifically said to it to to the public made it widely known that these that in individual shit can the government had to live up to the to the commitments that it made and that it would in fact honor it speaker ryan said that individuals have organized their lives around this and we will not pull the rug out from under them we're on a motion to dismiss we have certainly shown a set of facts that support the notion that the mutual understanding on both sides would make no sense if in fact the if i could has an extra time let me let me ask you some questions if i could may frame it better just don't have to hardman's and all right so let's say that i have concerns over just disability on the a p a claim yes but let's say i think your equal protection clause claim is strong where are we in this case and i'm not saying this is what we would do well if we were to say a p a is a loser but motion dismissed judge also got that right procedurally where are we in this case i think your honor ken ken can affirm this injunction in addition to the a p a grants on the equal protection grounds and here's why your honor the basis of our equal protection argument depends upon four factors that arlington heights specifically recognize none of those factors none of those factors require a contrary showing require any sort of showing whatsoever because they're all undisputed facts factor number one the president both before and after he took office referred to individuals from the very countries where they're coming from as drug dealers as druggies as criminals as bad individuals to the overwhelming the disparate impact on this was that seventy nine percent of individuals came from mexico ninety three percent came from central american countries and their cases like the wall in case that is that is a disparate impact based on ethnicity factor three factor three is the fact that with respect to the part of  pages two sixty six and two sixty seven this was a substantial departure from usual reasons why is that it was precisely the opposite what you would expect because the stock a recipient they're not high priority individuals they weren't doing anything that would indicate that they should somehow go to the top of the list and for your honor because these individuals from these countries are being treated as bargaining chips for other policies that's not going to happen with norwegians that's not going to happen with western europeans that is enough as mr davidson was saying to create a circumstance where we have a substantial questions which is enough to support a preliminary injunction and frankly there is nothing that the government can say that i doubt any of the facts that we set there only argument is a legally wrong argument and that is that reno and armstrong somehow apply in this case but there has never been a selective prosecution case in the history of this country that has not been a one off sort of case there's never been a case where they the every case i'm sorry every case has always been we're prosecuting you and we're not prosecuting you in a particular situation this is arlington heights and this case this court decision in the long case where ms wong in fact said said i'm being discriminated against because i'm from hong kong is an ethnicity argument does birds on set this is not a selective prosecution argument this is a policy of an overall program  what was involved in arlington heights precisely what's involved here i know of no place in the history of this country that has the constellation of factors that are undisputed that would say to this court you can in fact affirm on equal protection grounds as well so i think it would be who would help me in deciding this case this is probably for both parties if if you have any authority on the question i was asking the question is is that when a party moves for preliminary junction on one ground and not another ground in the complain may we consider the entire complaint any arguments raised in the complaint or are we stuck with the issue that actually put forth in the motion the are we're pleased to present that in a letter bring it over them quickly but it is a it is black letter law to say that we can urge any grounds whatsoever in support of a judgment thank he didn't have a single answer to why this sort of decision is traditionally not reviewable he didn't disagree that heckler bush cheney applies to broad decisions and he didn't disagree that heckler restraining question foresman decisions so he's got no argument for why this isn't traditionally non reviewable he then said made an argument about political accountability but that is equally true in the heckler situation in the b l e situation if a prosecutor says i'm not prosecuting such and such person or such and such sort of crimes because i don't think the law will allow it that allows him to escape political accountability just as much of what he turns out the law would allow it and he's making a policy decision but that is simply never been the understanding of how judicial review works of enforcement discretion there is a narrow exception for a decision that you if an agency says that it lacks jurisdiction to enforce the law in situations that go so broad that it could be understood to exceed the constraints of enforcement question that are imposed not met the second point i'd like to make is on the merits on arbitrary and capricious review counsel said that we had to show our homework two points about that honor first they haven't cited a single case that has said that an agency when it makes a decision that's based on a legal type of analysis on the relative legal concerns and legal risk have to lay out the subsidiary legal reasoning like it's a bench memo to a job's not a single case but if we did have to do it i think it's fairly all that they didn't give you a single reason this entire argument a single reason why doc is any different from dop i explained in response to our last questions why the distinctions that have been proffered between dop and doctor just don't hold water not a word from them in response so the notion that we didn't show our homework is simply wrong that the similarity between dop and doc aren't obvious on its face and they can't refute it but it and the last thing i will say about that is if there is some sort of secret show your homework requirement on the a p a for these sort of legal determination than doc itself feels that because they also didn't dispute there's not a word in docket that describes why it's lawful there's not a word in docket that describes the costs so if the sort of arbitron caprices standard that they're trying to apply to us were applied to doc a doctor would fall to the last point i'd like to make your honour's on the equal protection claim we do think a t c applies and forecloses it but even setting aside a t c at a minimum they have to have clear evidence of discriminatory intent they don't have a single allegation in their complaint about the acting secretary's motive in this case that i think secretaries the decision maker here and they don't have a word of racial and right but the acting secretary ultimately reports of the president of the united states and he has said all kinds of things that could be relevant in this litigation and i know we have to wait for the supreme court in the trump in the travel ban case maybe to understand how we can fully evaluate his statements on the cortex and i get that but i mean doesn't your secretary answer ultimately to the president so a couple things about that your honor first of all i don't think and they haven't cited any case that says that you can impute to a cabinet secretary invidious motives based on the statements of the president the united states that's especially true when the statements by the president aren't about the policy in question and aren't about racial animus the most of their snow any authority says that you can't impute the statements i don't think so your honor  question is does it make a difference and analysis whether messages from the president were before he actually became president versus after he became i think the argument for imitation is even weaker and significantly weaker with respect to pre presidential statements because at the time both asked for his own motivates before he's taken in though the office and all the rest that we've argued in the travel case more importantly in the sort of imputation he wasn't her boss at the time he made those what would you would you agree though that the travel ban case will shed some light on this question most likely it potentially will your honor and while in normal circumstances it might make sense to wait to see what the court does there i do think it's important and we think this court for expediting this appeal and for acting so expeditiously on it the supreme court has suggested that it would be helpful if the scoreboard to act quickly and since i soon the travel case will probably stretch out till the end of june it might not be the most  prudent exercise of the let me ask you this what i believe i saw the supreme court said but why does the government need this case this case can travel bans aside why is the government need this case decided so quickly when it is said that there are so it's important what is on the other side why all the sudden now do we have to decide this case or we're being forced to maintain a policy that gives affirmative saying into seven hundred thousand illegal aliens in a policy that we think is illegal that is an extraordinary intrude on the executive branch to require the maintenance of a policy of purported prostrate discretion that itself is on lawful but i thought i saw things about they wanted us you know on order and wind down and so forth is that now not the case there was an orderly wind down for the convenience of the administration self because of the pipeline issues if you have pending applications that wind down was literally it was for there was an extra thirty days that after september fifth we said that for another thirty days we would accept applications and that was it that was the wind down it was not some broad wind down we it is true we haven't revoked permits that work permits that had been authorized so people who got their work permits can maintain them for the life of that work permit but it is still an extraordinary thing to require us to continue to grant new work permits a new work authorization and new deferred action protection from removal of the seven hundred thousand illegal aliens in a circumstance where the chief law enforcement officer this country has decided that the policies unlawful and we're being forced to maintain that that's an extraordinary intrusion right now you're still granting applications renewals your hon anyway thank you very much counsel all counsel for an excellent argument and the regions of the university of california versus the department of homeland security will be submitted and this court is